27May08
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General Comments Adopted by the Committee on the Rights of the Child
Contents:
VI. GENERAL COMMENTS ADOPTED BY THE COMMITTEE ON THE RIGHTS OF THE CHILD
VI. GENERAL COMMENTS ADOPTED BY THE COMMITTEE ON THE RIGHTS OF
THE CHILD
Twenty-sixth session (2001) General comment No. 1:
The aims of education
The significance of article 29 (1)
1. Article 29, paragraph 1, of the Convention on the Rights of the Child is of far-reaching
importance. The aims of education that it sets out, which have been agreed to by all States parties,
promote, support and protect the core value of the Convention: the human dignity innate in every
child and his or her equal and inalienable rights. These aims, set out in the five subparagraphs of
article 29 (1), are all linked directly to the realization of the child's human dignity and rights, taking
into account the child's special developmental needs and diverse evolving capacities. The aims are:
the holistic development of the full potential of the child (29 (1) (a)), including development of
respect for human rights (29 (1) (b)), an enhanced sense of identity and affiliation (29 (1) (c)), and
his or her socialization and interaction with others (29 (1) (d)) and with the environment (29 (1) (e)).
2. Article 29 (1) not only adds to the right to education recognized in article 28 a qualitative
dimension which reflects the rights and inherent dignity of the child; it also insists upon the need
for education to be child-centred, child-friendly and empowering, and it highlights the need for
educational processes to be based upon the very principles it enunciates. |1| The education to which
every child has a right is one designed to provide the child with life skills, to strengthen the child's
capacity to enjoy the full range of human rights and to promote a culture which is infused by
appropriate human rights values. The goal is to empower the child by developing his or her skills,
learning and other capacities, human dignity, self-esteem and self-confidence. "Education" in this
context goes far beyond formal schooling to embrace the broad range of life experiences and
learning processes which enable children, individually and collectively, to develop their
personalities, talents and abilities and to live a full and satisfying life within society.
3. The child's right to education is not only a matter of access (art. 28) but also of content. An
education with its contents firmly rooted in the values of article 29 (1) is for every child an
indispensable tool for her or his efforts to achieve in the course of her or his life a balanced, human
rights-friendly response to the challenges that accompany a period of fundamental change driven
by globalization, new technologies and related phenomena. Such challenges include the tensions
between, inter alia, the global and the local; the individual and the collective; tradition and
modernity; long- and short-term considerations; competition and equality of opportunity; the
expansion of knowledge and the capacity to assimilate it; and the spiritual and the material. |2| And
yet, in the national and international programmes and policies on education that really count, the
elements embodied in article 29 (1) seem all too often to be either largely missing or present only
as a cosmetic afterthought.
4. Article 29 (1) states that the States parties agree that education should be directed to a wide
range of values. This agreement overcomes the boundaries of religion, nation and culture built
across many parts of the world. At first sight, some of the diverse values expressed in article 29 (1)
might be thought to be in conflict with one another in certain situations. Thus, efforts to promote
understanding, tolerance and friendship among all peoples, to which paragraph (1) (d) refers, might
not always be automatically compatible with policies designed, in accordance with paragraph (1)
(c), to develop respect for the child's own cultural identity, language and values, for the national
values of the country in which the child is living, the country from which he or she may originate,
and for civilizations different from his or her own. But in fact, part of the importance of this
provision lies precisely in its recognition of the need for a balanced approach to education and one
which succeeds in reconciling diverse values through dialogue and respect for difference. Moreover,
children are capable of playing a unique role in bridging many of the differences that have
historically separated groups of people from one another.
The functions of article 29 (1)
5. Article 29 (1) is much more than an inventory or listing of different objectives which education
should seek to achieve. Within the overall context of the Convention it serves to highlight, inter alia,
the following dimensions.
6. First, it emphasizes the indispensable interconnected nature of the Convention's provisions. It
draws upon, reinforces, integrates and complements a variety of other provisions and cannot be
properly understood in isolation from them. In addition to the general principles of the Convention -
non-discrimination (art. 2), the best interest of the child (art. 3), the right to life, survival and
development (art. 6) and the right to express views and have them taken into account (art. 12) -
many other provisions may be mentioned, such as but not limited to the rights and responsibilities
of parents (arts. 5 and 18), freedom of expression (art. 13), freedom of thought (art. 14), the right
to information (art. 17), the rights of children with disabilities (art. 23), the right to education for
health (art. 24), the right to education (art. 28), and the linguistic and cultural rights of children
belonging to minority groups (art. 30).
7. Children's rights are not detached or isolated values devoid of context, but exist within a broader
ethical framework which is partly described in article 29 (1) and in the preamble to the Convention.
Many of the criticisms that have been made of the Convention are specifically answered by this
provision. Thus, for example, this article underlines the importance of respect for parents, of the
need to view rights within their broader ethical, moral, spiritual, cultural or social framework and
of the fact that most children's rights, far from being externally imposed, are embedded within the
values of local communities.
8. Second, the article attaches importance to the process by which the right to education is to be
promoted. Thus, efforts to promote the enjoyment of other rights must not be undermined, and
should be reinforced, by the values imparted in the educational process. This includes not only the
content of the curriculum but also the educational processes, the pedagogical methods and the
environment within which education takes place, whether it be the home, school, or elsewhere.
Children do not lose their human rights by virtue of passing through the school gates. Thus, for
example, education must be provided in a way that respects the inherent dignity of the child and
enables the child to express his or her views freely in accordance with article 12 (1) and to
participate in school life. Education must also be provided in a way that respects the strict limits on
discipline reflected in article 28 (2) and promotes non-violence in school. The Committee has
repeatedly made clear in its concluding observations that the use of corporal punishment does not
respect the inherent dignity of the child nor the strict limits on school discipline. Compliance with
the values recognized in article 29 (1) clearly requires that schools be child-friendly in the fullest
sense of the term and that they be consistent in all respects with the dignity of the child. The
participation of children in school life, the creation of school communities and student councils, peer
education and peer counselling, and the involvement of children in school disciplinary proceedings
should be promoted as part of the process of learning and experiencing the realization of rights.
9. Third, while article 28 focuses upon the obligations of State parties in relation to the
establishment of educational systems and in ensuring access thereto, article 29 (1) underlies the
individual and subjective right to a specific quality of education. Consistent with the Convention's
emphasis on the importance of acting in the best interests of the child, this article emphasizes the
message of child-centred education: that the key goal of education is the development of the
individual child's personality, talents and abilities, in recognition of the fact that every child has
unique characteristics, interests, abilities, and learning needs. |3| Thus, the curriculum must be of direct
relevance to the child's social, cultural, environmental and economic context and to his or her
present and future needs and take full account of the child's evolving capacities; teaching methods
should be tailored to the different needs of different children. Education must also be aimed at
ensuring that essential life skills are learnt by every child 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. Basic
skills include not only literacy and numeracy but also life skills such as the ability to make well-balanced decisions; to resolve conflicts in a non-violent manner; and to develop a healthy lifestyle,
good social relationships and responsibility, critical thinking, creative talents, and other abilities
which give children the tools needed to pursue their options in life.
10. Discrimination on the basis of any of the grounds listed in article 2 of the Convention, whether
it is overt or hidden, offends the human dignity of the child and is capable of undermining or even
destroying the capacity of the child to benefit from educational opportunities. While denying a
child's access to educational opportunities is primarily a matter which relates to article 28 of the
Convention, there are many ways in which failure to comply with the principles contained in article
29 (1) can have a similar effect. To take an extreme example, gender discrimination can be
reinforced by practices such as a curriculum which is inconsistent with the principles of gender
equality, by arrangements which limit the benefits girls can obtain from the educational
opportunities offered, and by unsafe or unfriendly environments which discourage girls'
participation. Discrimination against children with disabilities is also pervasive in many formal
educational systems and in a great many informal educational settings, including in the home. |4|
Children with HIV/AIDS are also heavily discriminated against in both settings. |5| All such
discriminatory practices are in direct contradiction with the requirements in article 29 (1) (a) that
education be directed to the development of the child's personality, talents and mental and physical
abilities to their fullest potential.
11. The Committee also wishes to highlight the links between article 29 (1) and the struggle against
racism, racial discrimination, xenophobia and related intolerance. 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. A reliable and enduring antidote to all of these failings is the provision of education
which promotes an understanding and appreciation of the values reflected in article 29 (1), including
respect for differences, and challenges all aspects of discrimination and prejudice. Education should
thus be accorded one of the highest priorities in all campaigns against the evils of racism and related
phenomena. Emphasis must also be placed upon the importance of teaching about racism as it has
been practised historically, and particularly as it manifests or has manifested itself within particular
communities. Racist behaviour is not something engaged in only by "others". It is therefore
important to focus on the child's own community when teaching human and children's rights and the
principle of non-discrimination. Such teaching can effectively contribute to the prevention and
elimination of racism, ethnic discrimination, xenophobia and related intolerance.
12. Fourth, article 29 (1) insists upon a holistic approach to education which ensures that the
educational opportunities made available reflect an appropriate balance between promoting the
physical, mental, spiritual and emotional aspects of education, the intellectual, social and practical
dimensions, and the childhood and lifelong aspects. The overall objective of education is to
maximize the child's ability and opportunity to participate fully and responsibly in a free society.
It should be emphasized that the type of teaching that is focused primarily on accumulation of
knowledge, prompting competition and leading to an excessive burden of work on children, may
seriously hamper the harmonious development of the child to the fullest potential of his or her
abilities and talents. Education should be child-friendly, inspiring and motivating the individual
child. Schools should foster a humane atmosphere and allow children to develop according to their
evolving capacities.
13. Fifth, it emphasizes the need for education to be designed and provided in such a way that it
promotes and reinforces the range of specific ethical values enshrined in the Convention, including
education for peace, tolerance, and respect for the natural environment, in an integrated and holistic
manner. This may require a multidisciplinary approach. The promotion and reinforcement of the
values of article 29 (1) are not only necessary because of problems elsewhere, but must also focus
on problems within the child's own community. Education in this regard should take place within
the family, but schools and communities must also play an important role. For example, for the
development of respect for the natural environment, education must link issues of environmental
and sustainable development with socio-economic, sociocultural and demographic issues. Similarly,
respect for the natural environment should be learnt by children at home, in school and within the
community, encompass both national and international problems, and actively involve children in
local, regional or global environmental projects.
14. Sixth, it reflects the vital role of appropriate educational opportunities in the promotion of all
other human rights and the understanding of their indivisibility. A child's capacity to participate fully
and responsibly in a free society can be impaired or undermined not only by outright denial of
access to education but also by a failure to promote an understanding of the values recognized in this
article.
Human rights education
15. Article 29 (1) can also be seen as a foundation stone for the various programmes of human rights
education called for by the World Conference on Human Rights, held in Vienna in 1993, and
promoted by international agencies. Nevertheless, the rights of the child have not always been given
the prominence they require in the context of such activities. Human rights education should provide
information on the content of human rights treaties. But children should also learn about human
rights by seeing human rights standards implemented in practice, whether at home, in school, or
within the community. Human rights education should be a comprehensive, lifelong process and
start with the reflection of human rights values in the daily life and experiences of children. |6|
16. The values embodied in article 29 (1) are relevant to children living in zones of peace but they
are even more important for those living in situations of conflict or emergency. As the Dakar
Framework for Action notes, it is important in the context of education systems affected by conflict,
natural calamities and instability that educational programmes be conducted in ways that promote
mutual understanding, peace and tolerance, and that help to prevent violence and conflict. |7|
Education about international humanitarian law also constitutes an important, but all too often
neglected, dimension of efforts to give effect to article 29 (1).
Implementation, monitoring and review
17. The aims and values reflected in this article are stated in quite general terms and their
implications are potentially very wide-ranging. This seems to have led many States parties to assume
that it is unnecessary, or even inappropriate, to ensure that the relevant principles are reflected in
legislation or in administrative directives. This assumption is unwarranted. In the absence of any
specific formal endorsement in national law or policy, it seems unlikely that the relevant principles
are or will be used to genuinely inform educational policies. The Committee therefore calls upon
all States parties to take the necessary steps to formally incorporate these principles into their
education policies and legislation at all levels.
18. The effective promotion of article 29 (1) requires the fundamental reworking of curricula to
include the various aims of education and the systematic revision of textbooks and other teaching
materials and technologies, as well as school policies. Approaches which do no more than seek to
superimpose the aims and values of the article on the existing system without encouraging any
deeper changes are clearly inadequate. The relevant values cannot be effectively integrated into, and
thus be rendered consistent with, a broader curriculum unless those who are expected to transmit,
promote, teach and, as far as possible, exemplify the values have themselves been convinced of their
importance. Pre-service and in-service training schemes which promote the principles reflected in
article 29 (1) are thus essential for teachers, educational administrators and others involved in child
education. It is also important that the teaching methods used in schools reflect the spirit and
educational philosophy of the Convention on the Rights of the Child and the aims of education laid
down in article 29 (1).
19. In addition, the school environment itself must thus reflect the freedom and the spirit of
understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national
and religious groups and persons of indigenous origin called for in article 29 (1) (b) and (d). A
school which allows bullying or other violent and exclusionary practices to occur is not one which
meets the requirements of article 29 (1). The term "human rights education" is too often used in a
way which greatly oversimplifies its connotations. What is needed, in addition to formal human
rights education, is the promotion of values and policies conducive to human rights not only within
schools and universities but also within the broader community.
20. In general terms, the various initiatives that States parties are required to take pursuant to their
Convention obligations will be insufficiently grounded in the absence of widespread dissemination
of the text of the Convention itself, in accordance with the provisions of article 42. This will also
facilitate the role of children as promoters and defenders of children's rights in their daily lives. In
order to facilitate broader dissemination, States parties should report on the measures they have
taken to achieve this objective and the Office of the High Commissioner for Human Rights should
develop a comprehensive database of the language versions of the Convention that have been
produced.
21. The media, broadly defined, also have a central role to play, both in promoting the values and
aims reflected in article 29 (1) and in ensuring that their activities do not undermine the efforts of
others to promote those objectives. Governments are obligated by the Convention, pursuant to article
17 (a), to take all appropriate steps to "encourage the mass media to disseminate information and
material of social and cultural benefit to the child". |8|
22. The Committee calls upon States parties to devote more attention to education as a dynamic
process and to devising means by which to measure changes over time in relation to article 29 (1).
Every child has the right to receive an education of good quality which in turn requires a focus on
the quality of the learning environment, of teaching and learning processes and materials, and of
learning outputs. The Committee notes the importance of surveys that may provide an opportunity
to assess the progress made, based upon consideration of the views of all actors involved in the
process, including children currently in or out of school, teachers and youth leaders, parents, and
educational administrators and supervisors. In this respect, the Committee emphasizes the role of
national-level monitoring which seeks to ensure that children, parents and teachers can have an input
in decisions relevant to education.
23. The Committee calls upon States parties to develop a comprehensive national plan of action to
promote and monitor realization of the objectives listed in article 29 (1). If such a plan is drawn up
in the larger context of a national action plan for children, a national human rights action plan, or
a national human rights education strategy, the Government must ensure that it nonetheless
addresses all of the issues dealt with in article 29 (1) and does so from a child-rights perspective.
The Committee urges that the United Nations and other international bodies concerned with
educational policy and human rights education seek better coordination so as to enhance the
effectiveness of the implementation of article 29 (1).
24. The design and implementation of programmes to promote the values reflected in this article
should become part of the standard response by Governments to almost all situations in which
patterns of human rights violations have occurred. Thus, for example, where major incidents of
racism, racial discrimination, xenophobia and related intolerance occur which involve those under
18, it can reasonably be presumed that the Government has not done all that it should to promote
the values reflected in the Convention generally, and in article 29 (1) in particular. Appropriate
additional measures under article 29 (1) should therefore be adopted which include research on and
adoption of whatever educational techniques might have a positive impact in achieving the rights
recognized in the Convention.
25. States parties should also consider establishing a review procedure which responds to complaints
that existing policies or practices are not consistent with article 29 (1). Such review procedures need
not necessarily entail the creation of new legal, administrative, or educational bodies. They might
also be entrusted to national human rights institutions or to existing administrative bodies. The
Committee requests each State party when reporting on this article to identify the genuine
possibilities that exist at the national or local level to obtain a review of existing approaches which
are claimed to be incompatible with the Convention. Information should be provided as to how such
reviews can be initiated and how many such review procedures have been undertaken within the
reporting period.
26. In order to better focus the process of examining States parties' reports dealing with article 29
(1), and in accordance with the requirement in article 44 that reports shall indicate factors and
difficulties, the Committee requests each State party to provide a detailed indication in its periodic
reports of what it considers to be the most important priorities within its jurisdiction which call for
a more concerted effort to promote the values reflected in this provision and to outline the
programme of activities which it proposes to take over the succeeding five years in order to address
the problems identified.
27. The Committee calls upon United Nations bodies and agencies and other competent bodies
whose role is underscored in article 45 of the Convention to contribute more actively and
systematically to the Committee's work in relation to article 29 (1).
28. Implementation of comprehensive national plans of action to enhance compliance with article
29 (1) will require human and financial resources which should be available to the maximum extent
possible, in accordance with article 4. Therefore, the Committee considers that resource constraints
cannot provide a justification for a State party's failure to take any, or enough, of the measures that
are required. In this context, and in light of the obligations upon States parties to promote and
encourage international cooperation both in general terms (articles 4 and 45 of the Convention) and
in relation to education (art. 28 (3)), the Committee urges States parties providing development
cooperation to ensure that their programmes are designed so as to take full account of the principles
contained in article 29 (1).
Notes:
1. In this regard, the Committee takes note of general comment No. 13 (1999) of the Committee on
Economic, Social and Cultural Rights on the right to education, which deals, inter alia, with the aims
of education under article 13 (1) of the International Covenant on Economic, Social and Cultural
Rights. The Committee also draws attention to the general guidelines regarding the form and
contents of periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of
the Convention (CRC/C/58, paras. 112-116). [Back]
2. United Nations Educational, Scientific and Cultural Organization, Learning: The Treasure Within,
Report of the International Commission on Education for the 21st Century, 1996, pp. 16-18. [Back]
3. United Nations Educational, Scientific and Cultural Organization, The Salamanca Statement and
Framework for Action on Special Needs Edgucation, 1994, p. viii. [Back]
4. See general comment No. 5 (1994) of the Committee on Economic, Social and Cultural Rights
on persons with disabilities. [Back]
5. See the recommendations adopted by the Committee on the Rights of the Child after its day of
general discussion in 1998 on children living in a world with HIV/AIDS (A/55/41, para. 1536). [Back]
6. See General Assembly resolution 49/184 of 23 December 1994 proclaiming the United Nations
Decade for Human Rights Education. [Back]
7. Education for All: Meeting our Collective Commitments, adopted at the World Education Forum,
Dakar, 26-28 April 2000. [Back]
8. The Committee recalls the recommendations in this respect which emerged from its day of
general discussion in 1996 on the child and the media (see A/53/41, para. 1396). [Back]
Thirty-first session (2002)
General comment No. 2:
The role of independent national human rights institutions in the promotion and protection
of the rights of the child
1. Article 4 of the Convention on the Rights of the Child 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.
2. The Committee issues this general comment in order to encourage States parties to establish an
independent institution for the promotion and monitoring of implementation of the Convention and
to support them in this regard by elaborating the essential elements of such institutions and the
activities which should be carried out by them. Where such institutions have already been
established, the Committee calls upon States to review their status and effectiveness for promoting
and protecting children's rights, as enshrined in the Convention on the Rights of the Child and other
relevant international instruments.
3. The World Conference on Human Rights, held in 1993, in the Vienna Declaration and Programme
of Action reaffirmed "... the important and constructive role played by national institutions for the
promotion and protection of human rights", and encouraged "... the establishment and strengthening
of national institutions". The General Assembly and the Commission on Human Rights have
repeatedly called for the establishment of national human rights institutions, underlining the
important role NHRIs play in promoting and protecting human rights and enhancing public
awareness of those rights. In its general guidelines for periodic reports, the Committee requires that
States parties furnish information on "any independent body established to promote and protect the
rights of the child .", |1| hence, it consistently addresses this issue during its dialogue with States
parties.
4. NHRIs should be established in compliance with the Principles relating to the status of national
institutions for the promotion and protection of human rights (the "Paris Principles") adopted by the
General Assembly in 1993 |2| transmitted by the Commission on Human Rights in 1992. |3| These
minimum standards provide guidance for the establishment, competence, responsibilities,
composition, including pluralism, independence, methods of operation, and quasi-judicial activities
of such national bodies.
5. While adults and children alike need independent NHRIs to protect their human rights, additional
justifications exist for ensuring that children's human rights are given special attention. These
include the facts that children's developmental state makes them particularly vulnerable to human
rights violations; their opinions are still rarely taken into account; most children have no vote and
cannot play a meaningful role in the political process that determines Governments' response to
human rights; children encounter significant problems in using the judicial system to protect their
rights or to seek remedies for violations of their rights; and children's access to organizations that
may protect their rights is generally limited.
6. Specialist independent human rights institutions for children, ombudspersons or commissioners
for children's rights have been established in a growing number of States parties. Where resources
are limited, consideration must be given to ensuring that the available resources are used most
effectively for the promotion and protection of everyone's human rights, including children's, and
in this context development of a broad-based NHRI that includes a specific focus on children is
likely to constitute the best approach. A broad-based NHRI should include within its structure either
an identifiable commissioner specifically responsible for children's rights, or a specific section or
division responsible for children's rights.
7. It is the view of the Committee that every State needs an independent human rights institution
with responsibility for promoting and protecting children's rights. The Committee's principal
concern is that the institution, whatever its form, should be able, independently and effectively, to
monitor, promote and protect children's rights. It is essential that promotion and protection of
children's rights is "mainstreamed" and that all human rights institutions existing in a country work
closely together to this end.
Mandate and powers
8. NHRIs should, if possible, be constitutionally entrenched and must at least be legislatively
mandated. It is the view of the Committee that their mandate should include as broad a scope as
possible for promoting and protecting human rights, incorporating the Convention on the Rights of
the Child, its Optional Protocols and other relevant international human rights instruments - thus
effectively covering children's human rights, in particular their civil, political, economic, social and
cultural rights. The legislation should include provisions setting out specific functions, powers and
duties relating to children linked to the Convention on the Rights of the Child and its Optional
Protocols. If the NHRI was established before the existence of the Convention, or without expressly
incorporating it, necessary arrangements, including the enactment or amendment of legislation,
should be put in place so as to ensure conformity of the institution's mandate with the principles and
provisions of the Convention.
9. NHRIs should be accorded such powers as are necessary to enable them to discharge their
mandate effectively, including the power to hear any person and obtain any information and
document necessary for assessing the situations falling within their competence. These powers
should include the promotion and protection of the rights of all children under the jurisdiction of the
State party in relation not only to the State but to all relevant public and private entities.
Establishment process
10. The NHRI establishment process should be consultative, inclusive and transparent, initiated and
supported at the highest levels of Government and inclusive of all relevant elements of the State, the
legislature and civil society. In order to ensure their independence and effective functioning, NHRIs
must have adequate infrastructure, funding (including specifically for children's rights, within broad-based institutions), staff, premises, and freedom from forms of financial control that might affect
their independence.
Resources
11. While the Committee acknowledges that this is a very sensitive issue and that State parties
function with varying levels of economic resources, the Committee believes that it is the duty of
States to make reasonable financial provision for the operation of national human rights institutions
in light of article 4 of the Convention. The mandate and powers of national institutions may be
meaningless, or the exercise of their powers limited, if the national institution does not have the
means to operate effectively to discharge its powers.
Pluralistic representation
12. NHRIs should ensure that their composition includes pluralistic representation of the various
elements of civil society involved in the promotion and protection of human rights. They should
seek to involve, among others, the following: human rights, anti-discrimination and children's rights,
non-governmental organizations (NGOs), including child- and youth-led organizations; trade unions;
social and professional organizations (of doctors, lawyers, journalists, scientists, etc.); universities
and experts, including children's rights experts. Government departments should be involved in an
advisory capacity only. NHRIs should have appropriate and transparent appointment procedures,
including an open and competitive selection process.
Providing remedies for breaches of children's rights
13. NHRIs must have the power to consider individual complaints and petitions and carry out
investigations, including those submitted on behalf of or directly by children. In order to be able to
effectively carry out such investigations, they must have the powers to compel and question
witnesses, access relevant documentary evidence and access places of detention. They also have a
duty to seek to ensure that children have effective remedies - independent advice, advocacy and
complaints procedures - for any breaches of their rights. Where appropriate, NHRIs should
undertake mediation and conciliation of complaints.
14. NHRIs should have the power to support children taking cases to court, including the power (a)
to take cases concerning children's issues in the name of the NHRI and (b) to intervene in court cases
to inform the court about the human rights issues involved in the case.
Accessibility and participation
15. NHRIs should be geographically and physically accessible to all children. In the spirit of article
2 of the Convention, they should proactively reach out to all groups of children, in particular the
most vulnerable and disadvantaged, such as (but not limited to) children in care or detention,
children from minority and indigenous groups, children with disabilities, children living in poverty,
refugee and migrant children, street children and children with special needs in areas such as culture,
language, health and education. NHRI legislation should include the right of the institution to have
access in conditions of privacy to children in all forms of alternative care and to all institutions that
include children.
16. NHRIs have a key role to play in promoting respect for the views of children in all matters
affecting them, as articulated in article 12 of the Convention, by Government and throughout
society. This general principle should be applied to the establishment, organization and activities
of national human rights institutions. Institutions must ensure that they have direct contact with
children and that children are appropriately involved and consulted. Children's councils, for
example, could be created as advisory bodies for NHRIs to facilitate the participation of children
in matters of concern to them.
17. NHRIs should devise specially tailored consultation programmes and imaginative
communication strategies to ensure full compliance with article 12 of the Convention. A range of
suitable ways in which children can communicate with the institution should be established.
18. NHRIs must have the right to report directly, independently and separately on the state of
children's rights to the public and to parliamentary bodies. In this respect, States parties must ensure
that an annual debate is held in Parliament to provide parliamentarians with an opportunity to
discuss the work of the NHRI in respect of children's rights and the State's compliance with the
Convention.
Recommended activities
19. The following is an indicative, but not exhaustive, list of the types of activities which NHRIs
should carry out in relation to the implementation of children's rights in light of the general
principles of the Convention. They should:
(a) Undertake investigations into any situation of violation of children's rights, on
complaint or on their own initiative, within the scope of their mandate;
(b) Conduct inquiries on matters relating to children's rights;
(c) Prepare and publicize opinions, recommendations and reports, either at the request of national
authorities or on their own initiative, on any matter relating to the promotion and protection of
children's rights;
(d) Keep under review the adequacy and effectiveness of law and practice relating to the protection
of children's rights;
(e) Promote harmonization of national legislation, regulations and practices with the Convention on
the Rights of the Child, its Optional Protocols and other international human rights instruments
relevant to children's rights and promote their effective implementation, including through the
provision of advice to public and private bodies in construing and applying the Convention;
(f) Ensure that national economic policy makers take children's rights into account in setting and
evaluating national economic and development plans;
(g) Review and report on the Government's implementation and monitoring of the state of children's
rights, seeking to ensure that statistics are appropriately disaggregated and other information
collected on a regular basis in order to determine what must be done to realize children's rights;
(h) Encourage ratification of or accession to any relevant international human rights instruments;
(i) In accordance with article 3 of the Convention requiring that the best interests of children should
be a primary consideration in all actions concerning them, ensure that the impact of laws and
policies on children is carefully considered from development to implementation and beyond;
(j) In light of article 12, ensure that the views of children are expressed and heard on matters
concerning their human rights and in defining issues relating to their rights;
(k) Advocate for and facilitate meaningful participation by children's rights NGOs, including
organizations comprised of children themselves, in the development of domestic legislation and
international instruments on issues affecting children;
(l) Promote public understanding and awareness of the importance of children's rights and, for this
purpose, work closely with the media and undertake or sponsor research and educational activities
in the field;
(m) In accordance with article 42 of the Convention which obligates State parties to "make the
principles and provisions of the Convention widely known, by appropriate and active means, to
adults and children alike", sensitize the Government, public agencies and the general public to the
provisions of the Convention and monitor ways in which the State is meeting its obligations in this
regard;
(n) Assist in the formulation of programmes for the teaching of, research into and integration of
children's rights in the curricula of schools and universities and in professional circles;
(o) Undertake human rights education which specifically focuses on children (in addition to
promoting general public understanding about the importance of children's rights);
(p) Take legal proceedings to vindicate children's rights in the State or provide legal assistance to
children;
(q) Engage in mediation or conciliation processes before taking cases to court, where appropriate;
(r) Provide expertise in children's rights to the courts, in suitable cases as amicus curiae or
intervenor;
(s) In accordance with article 3 of the Convention which obliges States parties to "ensure that the
institutions, services and facilities responsible for the care or protection of children shall conform
with the standards established by competent authorities, particularly in the areas of safety, health,
in the number and suitability of their staff, as well as competent supervision", undertake visits to
juvenile homes (and all places where children are detained for reform or punishment) and care
institutions to report on the situation and to make recommendations for improvement;
(t) Undertake such other activities as are incidental to the above.
Reporting to the Committee on the Rights of the Child and cooperation between NHRIs and
United Nations agencies and human rights mechanisms
20. NHRIs should contribute independently to the reporting process under the Convention and other
relevant international instruments and monitor the integrity of government reports to international
treaty bodies with respect to children's rights, including through dialogue with the Committee on the
Rights of the Child at its pre-sessional working group and with other relevant treaty bodies.
21. The Committee requests that States parties include detailed information on the legislative basis
and mandate and principal relevant activities of NHRIs in their reports to the Committee. It is
appropriate for States parties to consult with independent human rights institutions during the
preparation of reports to the Committee. However, States parties must respect the independence of
these bodies and their independent role in providing information to the Committee. It is not
appropriate to delegate to NHRIs the drafting of reports or to include them in the government
delegation when reports are examined by the Committee.
22. NHRIs should also cooperate with the special procedures of the Commission on Human Rights,
including country and thematic mechanisms, in particular the Special Rapporteur on the sale of
children, child prostitution and child pornography and the Special Representative of the Secretary-General for Children and Armed Conflict.
23. The United Nations has a long-standing programme of assistance for the establishment and
strengthening of national human rights institutions. This programme, which is based in the Office
of the High Commissioner for Human Rights (OHCHR), provides technical assistance and facilitates
regional and global cooperation and exchanges among national human rights institutions. States
parties should avail themselves of this assistance where necessary. The United Nations Children's
Fund (UNICEF) also offers expertise and technical cooperation in this area.
24. As articulated in article 45 of the Convention, the Committee may also transmit, as it considers
appropriate, to any specialized United Nations agency, OHCHR and any other competent body any
reports from States parties that contain a request or indicate a need for technical advice or assistance
in the establishment of NHRIs.
NHRIs and States parties
25. The State ratifies the Convention on the Rights of the Child and takes on obligations to
implement it fully. The role of NHRIs is to monitor independently the State's compliance and
progress towards implementation and to do all it can to ensure full respect for children's rights.
While this may require the institution to develop projects to enhance the promotion and protection
of children's rights, it should not lead to the Government delegating its monitoring obligations to the
national institution. It is essential that institutions remain entirely free to set their own agenda and
determine their own activities.
NHRIs and NGOs
26. Non-governmental organizations play a vital role in promoting human rights and children's
rights. The role of NHRIs, with their legislative base and specific powers, is complementary. It is
essential that institutions work closely with NGOs and that Governments respect the independence
of both NHRIs and NGOs.
Regional and international cooperation
27. Regional and international processes and mechanisms can strengthen and consolidate NHRIs
through shared experience and skills, as NHRIs share common problems in the promotion and
protection of human rights in their respective countries.
28. In this respect, NHRIs should consult and cooperate with relevant national, regional and
international bodies and institutions on children's rights issues.
29. Children's human rights issues are not constrained by national borders and it has become
increasingly necessary to devise appropriate regional and international responses to a variety of child
rights issues (including, but not limited to, the trafficking of women and children, child
pornography, child soldiers, child labour, child abuse, refugee and migrant children, etc.).
International and regional mechanisms and exchanges are encouraged, as they provide NHRIs with
an opportunity to learn from each other's experience, collectively strengthen each other's positions
and contribute to resolving human rights problems affecting both countries and region.
Notes:
1. General guidelines regarding the form and contents of periodic reports to be submitted by States
parties under article 44, paragraph 1 (b), of the Convention (CRC/C/58), para. 18. [Volver]
2. Principles relating to the status of national institutions for the promotion and protection of human
rights (the "Paris Principles"), General Assembly resolution 48/134 of 20 December 1993, annex. [Volver]
3. Commission on Human Rights resolution 1992/54 of 3 March 1992, annex. [Volver]
Thirty-second session (2003)
General comment No. 3:
HIV/AIDS and the rights of the child
I. INTRODUCTION |1|
1. The HIV/AIDS epidemics have drastically changed the world in which children live. Millions of
children have been infected and have died and many more are gravely affected as HIV spreads
through their families and communities. The epidemics impact on the daily life on younger children,
and increase the victimization and marginalization of children especially on those living in
particularly difficult circumstances. HIV/AIDS is not a problem of some countries but of the entire
world. To truly bring its impact on children under control will require concerted and well-targeted
efforts from all countries at all stages of development.
Initially children were considered to be only marginally affected by the epidemic. However, the
international community has discovered that unfortunately, children are at the heart of the problem.
According to UNAIDS - the Joint United Nations Programme on HIV/AIDS - the most recent trends
are alarming: in most parts of the world the majority of new infections are in young people between
the ages of 15 and 24, sometimes younger. Women including young girls are also increasingly
becoming infected. In most regions of the world, the vast majority of infected women do not know
that they are infected and may unknowingly infect their children. Consequently many States have
recently registered an increase in their infant and child mortality rates and child mortality rate.
Adolescents are also vulnerable to HIV/AIDS because their first sexual experience may take place
in an environment in which they have no access to proper information and guidance. Children who
use drugs are at high risk.
Yet all children can be rendered vulnerable by the particular circumstances of their lives being
mainly: (a) children who are themselves HIV-infected; (b) children who are affected by the
epidemics because the loss of parental caregiver or teacher and/or because their families or
communities are severely strained by its consequences; and (c) children who are most vulnerable
to be infected or affected.
II. THE OBJECTIVES OF THIS GENERAL COMMENT
2. The objectives of this general comment are:
(a) To strengthen the identification and understanding of all the human rights of children
in the context of HIV/AIDS;
(b) To promote the realization of human rights of children in the context of HIV/AIDS as guaranteed
under the Convention on the Rights of the Child (hereafter, the Convention);
(c) To identify measures and good practices to increase the level of implementation by the States
of rights related to the prevention of HIV/AIDS and the support, care and protection of children
infected with or affected by this pandemic;
(d) To contribute to the formulation and promotion of child oriented Plans of Action, strategies,
laws, policies and programmes to combat the spread and mitigate the impact of HIV/AIDS at the
national and international level.
III. THE CONVENTION'S PERSPECTIVES TO HIV/AIDS -THE HOLISTIC CHILD
RIGHTS-BASED APPROACH
3. The issue of children and HIV/AIDS is perceived as mainly a medical or health problem, although
in reality it involves a much wider range of issues. In this regard the right to health (article 24 of the
Convention) is, however, central. But HIV/AIDS impacts so heavily on the lives of all children that
it affects all their rights - civil, political, economic, social and cultural. The rights in the general
principles of the Convention - the right to non-discrimination, (art. 2), the rights of the child to have
her/his interest to be a primary consideration (art. 3), the right to life, survival and development (art.
6) and the rights to have her/his views respected (art. 12) - should therefore be the guiding themes
in the consideration of HIV/AIDS at all levels of prevention, treatment, care and support.
4. Adequate measures to address HIV/AIDS can be provided to children and adolescents only if their
rights are fully respected. The most relevant rights in this regard are - in addition to the four above-referred general principles - the following: the right to access information and material aimed at the
promotion of their social, spiritual and moral well-being, physical and mental health (art. 17), their
right to preventive health care, sex education and family planning education and services (art. 24
(f)), their right to an appropriate standard of living (art. 27) their rights to privacy (art. 6), the right
not to be separated from parents (art. 9), the right to be protected from violence (art. 19), the rights
to special protection and assistance by the State (art. 20), the rights of children with disabilities (art.
23), the right to health (art. 24), the right to social security, including social insurance (art. 26), the
right to education and leisure (arts. 28 and 31), the right to be protected from economic and sexual
exploitation and abuse, from illicit use of narcotic drugs (arts. 32, 33, 34 and 36), the right to be
protected from abduction, sale and trafficking as well as torture or other cruel inhuman or degrading
treatment or punishment (arts. 35 and 37) and the right to physical and psychological recovery and
social reintegration (art. 39). Children are confronted with serious challenges to their above-mentioned rights as a result of the epidemics. The Convention and in particular the four general
principles with its comprehensive approach provide a powerful framework for efforts to reduce the
negative impact of the pandemic on the lives of children. The holistic rights-based approach required
to implement the Convention is the optimal tool to address the broader range of issues that relate to
prevention, treatment and care efforts.
(a) The right to non-discrimination (art. 2)
5. Discrimination is responsible for heightening the vulnerability of children to HIV and AIDS, as
well as seriously impacting the lives of children who are affected by HIV/AIDS, or are themselves
HIV infected. Girls and boys of parents living with HIV/AIDS are often the victims of stigma and
discrimination as they too are often assumed to be infected. As a result of discrimination children
are denied access to information, education (reference to general comment No. 1 on the aims of
education), health or social care services or from community life. At its extreme, discrimination
against HIV-infected children has resulted in their abandonment by their family, community and/or
society. Discrimination also fuels the epidemic by making children in particular those belonging to
certain groups like children living in remote or rural areas where services are less accessible, more
vulnerable to infection. These children are thereby doubly victimized.
6. Of particular concern is gender-based discrimination combined with taboos or negative or
judgemental attitudes to sexual activity of girls, often limiting their access to preventive measures
and other services. Of concern also is discrimination based on sexual orientation. In the design of
HIV/AIDS related strategies, and in keeping with their obligations under the Convention, State
parties must give careful consideration to prescribed gender norms within their societies with a view
to eliminating gender-based discrimination as these impact on the vulnerability of both girls and
boys to HIV/AIDS. States parties should in particular recognize that discrimination in the context
of HIV/AIDS often impacts girls more severely than boys.
7. All the above-mentioned discriminatory practices are violations of children's rights under the
Convention. Article 2 of the Convention obliges States to ensure all the rights under the Convention
without discrimination of any kind, and "irrespective of the child's or her or his 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 Committee interprets "other status" under
article 2 of the Convention to include HIV/AIDS status of the child or her/his parent(s). Laws,
policies, strategies and practices should address all forms of discrimination that contribute to
increasing the impact of the epidemics. Strategies should also promote education and training
programmes explicitly designed to change attitudes of discrimination and stigmatization associated
with HIV/AIDS.
(b) Best interests of the child (art. 3)
8. Policies and programmes for prevention, care and treatment of HIV/AIDS have generally been
designed for adults with scarce attention to the principle of the best interest of the child as a primary
consideration. Article 3 of the CRC, states: "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." The obligations attached to
this right are fundamental to guiding the action of States in relation to HIV/AIDS. The child should
be put at the centre of the response to the pandemic, adapting strategies to children's rights and
needs.
(c) The right to survival, life and development (art. 6)
9. Children have the right not to have their lives arbitrarily taken, as well as to benefit from
economic and social policies which will allow them to survive into adulthood and develop in the
broadest sense of the word. State obligation to realize the right to survival, life and development also
highlights the need to give careful attention to sexuality as well as to the behaviours and lifestyle
of children, even if they do not conform to the society's determination of what is acceptable under
prevailing cultural norms for a particular age group. In this regard, the female child is often subject
to harmful traditional practices such as early and or forced marriage, which violate her rights and
make her more vulnerable to HIV infection, including because such practices often interrupt access
to education and information. Effective prevention programmes are only those that acknowledge the
realities of the lives of adolescents, while addressing sexuality by ensuring equal access to
appropriate information, life-skills, and to preventive measures.
(d) The right to express views and have them taken into account (art. l2)
10. Children are rights holders and have a right to participate, in accordance with their evolving
capacities, in raising awareness by speaking out about the impact of HIV/AIDS on their lives and
in the development of HIV/AIDS policies and programmes. Interventions have been found to benefit
children most when they are actively involved in assessing needs, devising solutions, shaping
strategies and carrying them out rather than being seen as objects for whom decisions are made. In
this regard, the participation of children as peer educators, both within and outside schools, should
be actively promoted. States, international agencies and NGOs must provide children with a
supportive and enabling environment to carry out their own initiatives, and to fully participate at
both community and national levels in HIV policy and programme conceptualization, design,
implementation, coordination, monitoring and review. A variety of approaches are likely to be
necessary to ensure the participation of children from all sectors of society, including mechanisms
which encourage children, consistent with their evolving capacities, to express their views, have
them heard, and given due weight in accordance with their age and maturity (art. 12 (1)). Where
appropriate, the involvement of children living with HIV/AIDS in raising awareness, by sharing
their experiences with their peers and others is critical both to effective prevention and to reduce
stigma and discrimination. States parties must ensure that children who participate in these
awareness efforts do so voluntarily, after being counselled, and also that these children receive both
the social support and legal protection to allow them to lead normal lives during and after their
involvement.
(e) Obstacles
11. Experience has shown that many obstacles hinder delivery of effective prevention and care
services and the support of community initiatives on HIV/AIDS. These are mainly cultural,
structural and financial. Denial that a problem exists, cultural practices and attitudes, including
taboos and stigmatization, poverty, patronizing attitudes towards children, are just some of the
obstacles that may block the political and individual commitment needed for effective programmes.
Concerning financial, technical and human resources, the Committee is aware that those resources
may not be immediately available. But with regard to this obstacle the Committee likes to remind
the States parties of their obligation under article 4. It further notes that resources constraints should
not be used to justify States parties failure to take any or enough of the technical or financial
measures required. Finally, the Committee wants to emphasize in this regard the essential role of
international cooperation.
IV. PREVENTION, CARE, TREATMENT AND SUPPORT
12. The Committee wishes to stress that prevention, care, treatment and support are mutually
reinforcing elements and provide a continuum within an effective response to HIV/AIDS.
(a) Information for HIV prevention and raising awareness
13. Consistent with State party obligations in relation to the rights to health and information (arts.
24, 13 and 17), children should have the right to access adequate information related to HIV/AIDS
prevention and care, through formal channels (e.g. through educational opportunities and child-targeted media) as well as informal channels (e.g. targeted to street children, institutionalized
children or children living in difficult circumstances). States parties are reminded that children
require relevant, appropriate and timely information which recognizes the differences in levels of
understanding among them, is tailored appropriately to age level and capacity and enables them to
deal positively and responsibly with their sexuality in order to protect themselves from HIV
infection. The Committee wishes to emphasize that effective HIV/AIDS prevention requires States
to refrain from censoring, withholding or intentionally misrepresenting health-related information,
including sexual education and information, and that consistent with their obligations to ensure the
survival, life and development of the child (art. 6), States parties must ensure children have the
ability to acquire the knowledge and skills to protect themselves and others as they begin to express
their sexuality.
14. Dialogue with community, family and peer counsellors, and the provision of "life skills"
education within schools, including skills in communicating on sexuality and healthy living, have
been found to be useful approaches for delivering HIV prevention messages to both girls and boys,
but different approaches may be necessary to reach different groups of children. States parties must
make efforts to address gender differences as they may impact the access children have to
prevention messages, and ensure that children are reached with appropriate prevention messages
even if they face constraints due to language, religion, disability or other factors of discrimination.
Particular attention must be paid to raising awareness in hard to reach populations. In this respect,
the role of the mass-media and/or oral tradition in ensuring children have access to information and
material, as recognized in article 17 of the Convention, is crucial both to provide appropriate
information and to reduce stigma and discrimination. States parties should support the regular
monitoring and evaluation of HIV/AIDS awareness campaigns to ascertain their effectiveness in
providing information, reducing ignorance, stigma and discrimination, as well as addressing fear and
misperceptions concerning HIV and its transmission among children, including adolescents.
(b) The role of education
15. Education plays a critical role in providing children with relevant and appropriate information
on HIV/AIDS which can contribute to a better awareness and understanding of this phenomenon and
prevent negative attitudes towards victims of HIV/AIDS (see also the Committee's general comment
No. 1 on the aims of education). Furthermore, education can and should empower children to protect
themselves from the risk of HIV infection. In this regard, the Committee wants to remind the States
parties of their obligation to ensure that primary education is available to all children, whether
infected, orphaned or otherwise affected by HIV/AIDS. In many communities where HIV has spread
widely, children from affected families, in particular girls, are facing serious difficulties staying in
school and the number of teachers and other school employees lost to AIDS is limiting and
threatening to destroy the ability of children to access education. States parties must make adequate
provision to ensure children affected by HIV/AIDS can stay in school and ensure the qualified
replacement of sick teachers so that children's regular attendance at schools is not affected, and that
the right to education (art. 28) of all children living within these communities is fully protected.
16. States parties must make every effort to ensure that schools are safe places for children, which
offer them security and do not contribute to their vulnerability to HIV infection. In accordance with
article 34 of the Convention, States parties are obliged to take all appropriate measures to prevent,
inter alia, the inducement or coercion of any child to engage in unlawful sexual activity.
(c) Child and adolescent sensitive health services
17. The Committee is concerned that health services are generally still insufficiently responsive to
the needs of human beings below 18 years old, in particular adolescents. As the Committee has
noted on numerous occasions, children are more likely to use services that are friendly and
supportive, provide a range of services and information, are geared to their needs, ensure their
opportunity to participate in decisions affecting their health, and are accessible, affordable,
confidential, non-judgemental, do not require parental consent and do not discriminate. In the
context of HIV/AIDS and taking into account the evolving capacities of the child, States parties are
encouraged to ensure that health services employ trained personnel who fully respect the rights of
children to privacy (art. 6) and non-discrimination in offering them access to HIV-related
information, voluntary counselling and testing, knowledge of their HIV status, confidential sexual
and reproductive health services, free or low cost contraception, condoms and services, as well as
HIV-related care and treatment if and when needed, including for the prevention and treatment of
health problems related to HIV/AIDS e.g. tuberculosis and opportunistic infections.
18. In some countries, even when child and adolescent friendly HIV-related services are available,
they are not sufficiently accessible to children with disabilities, indigenous children, children
belonging to minorities, children living in rural areas, children living in extreme poverty or children
who are otherwise marginalized within the society. In others, where the health system's overall
capacity is already strained, children with HIV have been routinely denied access to basic health
care. States parties must ensure that services are provided to the maximum extent possible to all
children living within their borders, without discrimination, and that they sufficiently take into
account differences in gender, age, and the social, economic, cultural and political context in which
children live.
(d) HIV counselling and testing
19. The accessibility of voluntary, confidential HlV-counselling and testing services, with due
attention to the evolving capacities of the child, is fundamental to the rights and health of children.
These services are critical to children's ability to reduce their risk of acquiring or transmitting HIV,
to accessing HIV-specific care, treatment and support, and to better plan for their futures. Consistent
with the obligation under article 24 of the Convention to ensure that no child is deprived of her or
his right of access to necessary health services, States parties should ensure access to voluntary,
confidential HIV counselling and testing for all children.
20. The Committee wishes to stress that as the duty of States parties is first and foremost to ensure
that the rights of the child are protected, States parties must refrain from imposing mandatory
HIV/AIDS testing of children in all circumstances and ensure protection against it. While the
evolving capacities of the child will determine whether consent is required from the child directly
or from their parent or guardian, in all cases, consistent with the child's right to receive information
under articles 13 and 17 of the Convention, States parties must ensure that prior to any HIV-testing,
whether by health-care providers in relation to children who are accessing health services for another
medical condition or otherwise, the risks and benefits of such testing are sufficiently conveyed so
that an informed decision can be made.
21. States parties must protect the confidentiality of HIV test results consistent with the obligation
to protect the right to privacy of children (art. 16), including within health and social welfare
settings, and information on the HIV status of children may not be disclosed to third parties
including parents without consent.
(e) Mother-to-child transmission
22. Mother-to-child transmission (MTCT) is responsible for the majority of HIV infections in
infants and young children. Infants and young children can be infected with HIV during pregnancy,
labour and delivery, and through breastfeeding. States parties are requested to ensure
implementation of the strategies recommended by the United Nations agencies to prevent HIV
infection in infants and young children. These include: (1) the primary prevention of HIV infection
among parents-to-be, (2) the prevention of unintended pregnancies in HIV-infected women, (3) the
prevention of HIV transmission from HIV-infected women to their infants and (4) the provision of
care, treatment and support to HIV-infected women, their infants and families.
23. To prevent MTCT of HIV, States parties must take steps, including the provision of essential
drugs, e.g. antiretroviral drugs, appropriate antenatal, delivery and post-partum care, and making
HIV voluntary counselling and testing services available to pregnant women and their partners. The
Committee recognizes that antiretroviral drugs given to a woman during pregnancy and/or labour
and, in some regimens, to her infant, has been shown to significantly reduce the risk of transmission
from mother to child. However, in addition, State parties should provide support for mothers and
children, including counselling on infant feeding options. States parties are reminded that
counselling of HIV-positive mothers should include information about the risks and benefits of
different infant feeding options, and guidance in selecting the option most likely to be suitable for
their situation. Follow-up support is also required in order for women to be able to implement their
selected option as safely as possible.
24. Even in populations with high HIV prevalence, the majority of infants are born to women who
are not HIV-infected. For the infants of HIV-negative women and women who do not know their
HIV status, the Committee wishes to emphasize, consistent with articles 6 and 24 that breastfeeding
remains the best feeding choice. For the infants of HIV-positive mothers, available evidence
indicates that breastfeeding can add to the risk of HIV transmission by 10-20 per cent, but that lack
of breastfeeding can expose children to an increased risk of malnutrition or infectious disease other
than HIV. United Nations agencies have recommended that where replacement feeding is affordable,
feasible, acceptable, sustainable and safe, avoidance of all breastfeeding by HIV-infected mothers
is recommended - otherwise exclusive breastfeeding is recommended during the first months of life
and should then be discontinued as soon as it is feasible.
(f) Treatment and care
25. The obligations of States parties under the Convention extend to ensuring that children have
sustained and equal access to comprehensive treatment and care, including necessary HIV-related
drugs, goods and services on a basis of non-discrimination. It is now widely recognized that
comprehensive treatment and care includes antiretroviral and other medicines, diagnostics and
related technologies for the care of HIV/AIDS, related opportunistic infections and other conditions,
good nutrition, and social, spiritual, and psychological support, as well as family, community and
home-based care. In this regard, States parties should negotiate with the pharmaceutical industry in
order to make the necessary medicines available at the lowest costs possible at local level.
Furthermore States parties are requested to affirm, support and facilitate the involvement of
communities as part of comprehensive HIV/AIDS treatment, care and support, while nonetheless
complying with their own obligations under the Convention. States parties are asked to pay special
attention to addressing those factors within their societies that hinder equal access to treatment, care
and support for all children.
(g) Involvement of children in research
26. Consistent with article 24 of the Convention, States parties must ensure that HIV/AIDS research
programmes include specific studies that contribute to effective prevention, care, treatment, and
impact reduction for children. States parties must nonetheless ensure that children do not serve as
research subjects until an intervention has already been thoroughly tested on adults. Rights and
ethical concerns have arisen in relation to HIV/AIDS biomedical research, as well as HIV/AIDS
operations, social, cultural and behavioural research. Children have been subjected to unnecessary
or inappropriately designed research with little or no voice to either refuse or consent to
participation. In line with the child's evolving capacities, consent of the child should be sought and
consent may be sought from parents or guardians if necessary, but in all cases consent must be based
on full disclosure of the risks and benefits of research to the child States parties are further reminded
to ensure that the privacy rights of children, in line with their obligation under article 16 of the
Convention, are not inadvertently violated through the research process and that personal
information about children which is accessed through research is, under no circumstances, used for
purposes other than that for which consent was given. States parties must make every effort to
ensure that children, and according to their evolving capacities their parents and/or their guardians,
participate in decisions on research priorities and that a supportive environment is created for
children that participate in such research.
V. VULNERABILITY AND CHILDREN NEEDING SPECIAL PROTECTION
27. The vulnerability of children to HIV/AIDS resulting from political, economic, social, cultural
and other factors determines their likelihood of being left with insufficient support to cope with the
impact of HIV/AIDS on their families and communities, exposed to a risk of acquiring infection,
subjected to inappropriate research, or deprived of access to treatment, care and support if HIV
infection sets in. HIV/AIDS-related vulnerability is most acute for children living in refugee and
internally displaced persons (IDP) camps, children in detention, children living in institutions, as
well as children living in extreme poverty, children living in situations of armed conflict, child-soldiers, economically and sexually exploited children, disabled, migrant, minority, indigenous, and
street children, but all children can be rendered vulnerable by the particular circumstances of their
lives. Even in times of severe resource constraints, the Committee wishes to note that the rights of
vulnerable members of society must be protected and that many measures can be pursued with
minimum resource implications. Reducing HIV/AIDS-related vulnerability requires first and
foremost that children, their families and communities be empowered to make informed choices
about decisions, practices or policies affecting them in relation to HIV/AIDS.
(a) Children affected and orphaned by HIV/AIDS
28. Special attention must be given to children orphaned by AIDS, children from affected families,
including child-headed households, as these impact on vulnerability to HIV infection. For children
from families affected by HIV/AIDS, the stigmatization and social isolation they experience may
be accentuated by the neglect or violation of their rights, in particular discrimination resulting in a
decrease or loss of access to education, health and social services. The Committee wishes to
underline the necessity of legal, economic and social protections for affected children to ensure their
access to education, inheritance, shelter, health and social services, as well as to feel secure in
disclosing their HIV status and that of their family members when the children deem it appropriate.
In this respect, States parties are reminded that these measures are critical to realization of the rights
of children and to give them the skills and support necessary to reduce their vulnerability and risk
of becoming infected.
29. The Committee wishes to emphasize the critical implications of proof of identity for children
affected by HIV/AIDS, as it relates to securing recognition as a person before the law, safeguarding
the protection of rights, in particular to inheritance, education, health and other social services, as
well as to making children less vulnerable to abuse and exploitation, particularly if separated from
their families due to illness or death. In this respect, birth registration is critical to ensure the rights
of the child and is also necessary to minimize the impact of HIV/AIDS on the lives of affected
children. States parties are therefore reminded of their obligation under article 7 of the Convention
to ensure that systems are in place for the registration of every child at or shortly after birth.
30. The trauma HIV/AIDS brings to the lives of orphans often begins with the illness and death of
one of their parents, and is frequently compounded by the effects of stigma and discrimination. In
this respect, States parties are particularly reminded to ensure that both law and practice support the
inheritance and property rights of orphans, with particular attention to underlying gender-based
discrimination as it may interfere with the fulfilment of these rights. Consistent with their
obligations under article 27 of the Convention, States parties must also support and strengthen the
capacity of families and communities of children orphaned by AIDS to provide them with a standard
of living adequate for their physical, mental, spiritual, moral, economic and social development,
including access to psychosocial care as needed.
31. Orphans are best protected and cared for when efforts are made to enable siblings to remain
together, and in the care of relatives or family members. The extended family, with the support of
the surrounding community, may be the least traumatic and therefore the best way to care for
orphans when there are no other feasible alternatives. Assistance must be provided so that, to the
maximum extent possible, children can remain within existing family structures. This option may
not be available due to the impact HIV/AIDS has on the extended family. In that case, States parties
should provide as far as possible for family-type alternative care (e.g. foster care). States parties are
encouraged to provide support, financial and otherwise, when necessary, to child-headed
households. States parties must ensure that their strategies recognize that communities are at the
front line of the response to HIV/AIDS and that these strategies are designed to support communities
in their determinations as to how best to provide support to the orphans living there.
32. Although institutionalized care may have detrimental effects on child development, States
parties may nonetheless determine that it has an interim role to play in caring for children orphaned
by HIV/AIDS when family-based care within their own communities is not a possibility. It is the
opinion of the Committee, that any form of institutionalized care for children can only serve as a last
resort, and measures must be fully in place to protect the rights of the child and guard against all
forms of abuse and exploitation. In keeping with the right of children to special protection and
assistance when within these environments, and consistent with articles 3, 20 and 25 under the
Convention, strict measures are needed to ensure that such institutions meet specific standards of
care and comply with legal protections. States parties are reminded that limits must be placed on the
length of time children spend in these institutions, and programmes must be developed to support
any children who stay in these institutions, whether infected or affected by HIV/AIDS, to
successfully reintegrate into their communities.
(b) Victims of sexual and economic exploitation
33. Girls and boys who are deprived of the means of survival and development, particularly children
orphaned by AIDS, may be subjected to sexual and economic exploitation in a variety of forms,
including the exchange of sexual services or hazardous work for money to survive, support their sick
or dying parents and younger siblings, or to pay for school fees. Children who are infected or
immediately affected by HIV/AIDS may find themselves at a double disadvantage, experiencing
discrimination on the basis of both their social and economic marginalization and their, or their
parents, HIV status. Consistent with the right of children under articles 32, 34, 35 and 36 of the
Convention, and in order to decrease children's vulnerability to HIV/AIDS, States parties are obliged
to protect children from all forms of economic and sexual exploitation, including ensuring they do
not fall prey to prostitution networks, and that they are protected from performing any work likely
to be hazardous or to interfere with their education, health or physical, mental, spiritual, moral or
social development. States parties must take bold action to protect children from sexual and
economic exploitation, trafficking and sale and consistent with the rights under article 39, create
opportunities for those who have been subjected to such treatment to benefit from the support and
caring services of the State and non-governmental entities engaged in these issues.
(c) Victims of violence and abuse
34. Children may be exposed to various forms of violence and abuse which may increase their risk
of becoming HIV-infected, and they may also be subjected to violence as a result of their being
infected or affected by HIV/AIDS. Violence, including rape and other forms of sexual abuse, can
occur in the family or foster setting or be perpetrated by those with specific responsibilities towards
children, including teachers and employees of institutions working with children, such as prisons
and institutions concerned with mental health and other disabilities. In keeping with the rights of the
child according to article 19 of the Convention, States parties have the obligation to protect children
from all forms of violence and abuse, whether at home, in school or other institutions, or in the
community. Programmes must be specifically adapted to the environment in which children live,
their ability to recognize and disclose abuses and their individual capacity and autonomy. The
Committee considers that the relationship between HIV/AIDS and the violence or abuse suffered
by children in the context of war and armed conflict requires specific attention. Measures to prevent
violence and abuse in these situations are critical, and States parties must ensure the incorporation
of HIV/AIDS and child rights issues in addressing and supporting children - girls and boys - who
were used by military or other uniformed personnel to provide domestic help or sexual services, or
who are internally displaced or living in refugee camps. In keeping with States parties obligations,
including under articles 38 and 39 of the Convention, active information campaigns combined with
the counselling of children and mechanisms for prevention and early detection of violence and abuse
must be put in place within conflict and disaster affected regions, as well as within national and
community responses to HIV/AIDS.
Substance abuse
35. The use of substances, including alcohol and drugs, may reduce the ability of children to exert
control over their sexual conduct and, as a result, may increase their vulnerability to HIV infection.
Injecting practices with unsterile equipment further enhances the risk of HIV transmission. The
Committee notes that greater understanding is needed of substance-use behaviours among children,
including the impact that neglect and violation of the rights of the child has on these behaviours. In
most countries, children have not benefited from pragmatic HIV prevention programmes related to
substance use, which even when they do exist have largely been targeted at adults. The Committee
wishes to emphasize that policies and programmes aimed at reducing substance use and HIV
transmission must recognize the particular sensitivities and lifestyles of children, including
adolescents, in the context of HIV/AIDS prevention. Consistent with the right of children under
articles 33 and 24 of the Convention, States parties are obliged to ensure the implementation of
programmes that aim to reduce the factors that expose children to the use of substances, as well as
those that provide children that are abusing substances treatment and support.
VI. RECOMMENDATIONS
36. The Committee hereby reaffirms the recommendations, which emerged at the day of general
discussion on HIV/AIDS (CRC/C/80) and calls upon States parties to:
1. Adopt and implement national and local HIV/AIDS-related policies, including effective
Plans of Action, strategies, and programmes that are child-centred rights-based and incorporating
the rights of the child under the Convention including by taking into account the recommendations
made in the previous paragraphs of this general comment and those adopted at the United Nations
General Assembly Special Session on Children (2002).
2. Allocate financial, technical and human resources to the maximum extent available to support
national and community-based action (art. 4), and when appropriate within the context of
international cooperation (see hereafter under 7).
3. Review existing laws or enact new legislation with the view to implement fully article 2 of the
Convention and in particular to prohibit expressly discrimination based on real or perceived
HIV/AIDS status as to guarantee equal access of all children to all relevant services with particular
attention for the child's right to privacy and confidentiality and other recommendations the
Committee made in the previous paragraphs relevant to legislation.
4. Include HIV/AIDS Plans of Action, strategies, policies and programmes in the work of national
mechanisms for monitoring and coordinating children's rights and to consider the establishment of
a review procedure, which responds specifically to complaints of neglect or violation of the rights
of the child in relation to HIV/AIDS, whether this entails the creation of a new legislative or
administrative body or is entrusted to an existing national institution.
5. Reassess their HIV-related data collection and evaluation to ensure that they adequately cover
children as defined under the Convention, disaggregated by age and gender and ideally be done in
five-year age groups, and as far as possible reflect children belonging to vulnerable groups and in
need of special protection.
6. Include in their reporting process under article 44 of the CRC information on national HIV/AIDS
policies and programmes and, to the extent possible, budgeting and resource allocations at national,
regional and local levels, as well as within these breakdowns the proportions allocated to prevention,
care, research and impact reduction. Specific attention must be given to the extent to which these
programmes and policies explicitly recognize children (in light of their evolving capacities) and their
rights, and the extent to which HIV-related rights of children are dealt with in laws, policies and
practices, with specific attention to discrimination against children on the basis of their HIV status,
as well as because they are orphans or the children of parents living with HIV/AIDS. The
Committee requests States parties to provide a detailed indication in their reports of what it
considers to be the most important priorities within its jurisdiction in relation to children and
HIV/AIDS, and to outline the programme of activities it proposes to take over the succeeding five
years in order to address the problems identified. This will allow these to be progressively assessed
over time.
7. In order to promote international cooperation, the Committee calls upon UNICEF, WHO,
UNFPA, UNAIDS and other relevant international bodies, organizations and agencies to contribute
systematically, at the national level, to efforts to ensure the rights of children in the context of
HIV/AIDS, and also to continue to work with the Committee to improve the rights of the child in
the context of HIV/AIDS. Further the Committee urges States providing development cooperation
to ensure that HIV/AIDS strategies are designed so as to fully take into account the rights of the
child.
8. Non-governmental organizations, as well as community-based groups and other civil society
actors, such as youth groups, faith-based organizations, women's organizations, traditional leaders,
including religious and cultural leaders, all have a vital role to play in the response to the HIV/AIDS
pandemic. States parties are requested to ensure an enabling environment for civil society
participation, which includes facilitating collaboration and coordination among different players and
that they are given the support to be able to operate effectively without impediment. (In this regard,
States parties are specifically encouraged to support the full involvement of People Living with
HIV/AIDS, with particular attention to the inclusion of children, in the provision of HIV/AIDS
prevention, care, treatment and support services.)
Note:
1. In its seventeenth session (1998), the Committee on the Rights of the Child held a day of general
discussion on the theme of HIV/AIDS and children's rights in which it recommended a number of
actions be taken including facilitating the engagement of States parties on HIV/AIDS issues in
relation to the rights of the child. Human rights in relation to HIV/AIDS has also been discussed at
the Eighth Meeting of Persons Chairing the Human Rights Treaty Bodies in 1997 and been taken
up by the Committee on Economic, Social and Cultural Rights and the Committee on the
Elimination of Discrimination against Women. Similarly, HIV/AIDS has been discussed annually
by the Commission on Human Rights for over a decade. UNAIDS and UNICEF have emphasized
the rights of the child in relation to HIV/AIDS in all aspects of their work, and the World AIDS
Campaign for 1997 focused on "Children Living in a World with AIDS" and for 1998 on "Force for
Change: World AIDS Campaign with Young People". UNAIDS and the Office of the United
Nations High Commissioner for Human Rights have also produced The International Guidelines
on HIV/AIDS and Human Rights (1998) and its Revised Guideline 6 (2002) to promote and protect
human rights in the context of HIV/AIDS. At the international political level, HIV/AIDS - related
rights have been recognized in the United Nations General Assembly Special Session Declaration
of Commitment on HIV/AIDS, A World Fit for Children of the United Nations Assembly Special
Session on Children, and in other international and regional documents [Back]
Thirty-third session (2003)
General comment No. 4:
Adolescent health and development in the context of the Convention on the Rights of the
Child
Introduction
The Convention on the Rights of the Child defines a child as "every human being below the age of
18 years unless, under the law applicable, majority is attained earlier" (art. 1). Consequently,
adolescents up to 18 years old are holders of all the rights enshrined in the Convention; they are
entitled to special protection measures and, according to their evolving capacities, they can
progressively exercise their rights (art. 5).
Adolescence is a period characterized by rapid physical, cognitive and social changes, including
sexual and reproductive maturation; the gradual building up of the capacity to assume adult
behaviours and roles involving new responsibilities requiring new knowledge and skills. While
adolescents are in general a healthy population group, adolescence also poses new challenges to
health and development owing to their relative vulnerability and pressure from society, including
peers, to adopt risky health behaviour. These challenges include developing an individual identity
and dealing with one's sexuality. The dynamic transition period to adulthood is also generally a
period of positive changes, prompted by the significant capacity of adolescents to learn rapidly, to
experience new and diverse situations, to develop and use critical thinking, to familiarize themselves
with freedom, to be creative and to socialize.
The Committee on the Rights of the Child notes with concern that in implementing their obligations
under the Convention, States parties have not given sufficient attention to the specific concerns of
adolescents as rights holders and to promoting their health and development. This has motivated the
Committee to adopt the present general comment in order to raise awareness and provide States
parties with guidance and support in their efforts to guarantee the respect for, protection and
fulfilment of the rights of adolescents, including through the formulation of specific strategies and
policies.
The Committee understands the concepts of "health and development" more broadly than being
strictly limited to the provisions defined in articles 6 (right to life, survival and development) and
24 (right to health) of the Convention. One of the aims of this general comment is precisely to
identify the main human rights that need to be promoted and protected in order to ensure that
adolescents do enjoy the highest attainable standard of health, develop in a well-balanced manner,
and are adequately prepared to enter adulthood and assume a constructive role in their communities
and in society at large. This general comment should be read in conjunction with the Convention
and its two Optional Protocols on the sale of children, child prostitution and child pornography, and
on the involvement of children in armed conflict, as well as other relevant international human rights
norms and standards. |1|
I. FUNDAMENTAL PRINCIPLES AND OTHER OBLIGATIONS OF STATES
PARTIES
1. As recognized by the World Conference on Human Rights (1993) and repeatedly stated by the
Committee, children's rights too are indivisible and interrelated. In addition to articles 6 and 24,
other provisions and principles of the Convention are crucial in guaranteeing that adolescents fully
enjoy their right to health and development.
The right to non-discrimination
2. States parties have the obligation to ensure that all human beings below 18 enjoy all the rights set
forth in the Convention without discrimination (art. 2), including with regard to "race, colour, sex,
language, religion, political or other opinion, national, ethnic or social origin, property, disability,
birth or other status". These grounds also cover adolescents' sexual orientation and health status
(including HIV/AIDS and mental health). Adolescents who are subject to discrimination are more
vulnerable to abuse, other types of violence and exploitation, and their health and development are
put at greater risk. They are therefore entitled to special attention and protection from all segments
of society.
Appropriate guidance in the exercise of rights
3. The Convention acknowledges the responsibilities, rights and duties of parents (or other persons
legally responsible for the child) "to provide, in a manner consistent with the evolving capacities of
the child, appropriate direction and guidance in the exercise by the child of the rights recognized in
the Convention" (art. 5). The Committee believes that parents or other persons legally responsible
for the child need to fulfil with care their right and responsibility to provide direction and guidance
to their adolescent children in the exercise by the latter of their rights. They have an obligation to
take into account the adolescents' views, in accordance with their age and maturity, and to provide
a safe and supportive environment in which the adolescent can develop. Adolescents need to be
recognized by the members of their family environment as active rights holders who have the
capacity to become full and responsible citizens, given the proper guidance and direction.
Respect for the views of the child
4. The right to express views freely and have them duly taken into account (art. 12) is also
fundamental in realizing adolescents' right to health and development. States parties need to ensure
that adolescents are given a genuine chance to express their views freely on all matters affecting
them, especially within the family, in school, and in their communities. In order for adolescents to
be able safely and properly to exercise this right, public authorities, parents and other adults working
with or for children need to create an environment based on trust, information-sharing, the capacity
to listen and sound guidance that is conducive for adolescents' participating equally including in
decision-making processes.
Legal and judicial measures and processes
5. Under article 4 of the Convention, "States parties shall undertake all appropriate legislative,
administrative and other measures for the implementation of the rights recognized" therein. In the
context of the rights of adolescents to health and development, States parties need to ensure that
specific legal provisions are guaranteed under domestic law, including with regard to setting a
minimum age for sexual consent, marriage and the possibility of medical treatment without parental
consent. These minimum ages should be the same for boys and girls (article 2 of the Convention)
and closely reflect the recognition of the status of human beings under 18 years of age as rights
holders, in accordance with their evolving capacity, age and maturity (arts. 5 and 12 to 17). Further,
adolescents need to have easy access to individual complaint systems as well as judicial and
appropriate non-judicial redress mechanisms that guarantee fair and due process, with special
attention to the right to privacy (art. 16).
Civil rights and freedoms
6. The Convention defines the civil rights and freedoms of children and adolescents in its articles
13 to 17. These are fundamental in guaranteeing the right to health and development of adolescents.
Article 17 states that the child has the right to "access information and material from a diversity of
national and international sources, especially those aimed at the promotion of his or her social,
spiritual and moral well-being and physical and mental health". The right of adolescents to access
appropriate information is crucial if States parties are to promote cost-effective measures, including
through laws, policies and programmes, with regard to numerous health-related situations, including
those covered in articles 24 and 33 such as family planning, prevention of accidents, protection from
harmful traditional practices, including early marriages and female genital mutilation, and the abuse
of alcohol, tobacco and other harmful substances.
7. In order to promote the health and development of adolescents, States parties are also encouraged
to respect strictly their right to privacy and confidentiality, including with respect to advice and
counselling on health matters (art. 16). Health-care providers have an obligation to keep confidential
medical information concerning adolescents, bearing in mind the basic principles of the Convention.
Such information may only be disclosed with the consent of the adolescent, or in the same situations
applying to the violation of an adult's confidentiality. Adolescents deemed mature enough to receive
counselling without the presence of a parent or other person are entitled to privacy and may request
confidential services, including treatment.
Protection from all forms of abuse, neglect, violence and exploitation |2|
8. States parties must take effective measures to ensure that adolescents are protected from all forms
of violence, abuse, neglect and exploitation (arts. 19, 32-36 and 38), paying increased attention to
the specific forms of abuse, neglect, violence and exploitation that affects this age group. In
particular, they should adopt special measures to ensure the physical, sexual and mental integrity
of adolescents with disabilities, who are particularly vulnerable to abuse and neglect. States parties
should also ensure that adolescents affected by poverty who are socially marginalized are not
criminalized. In this regard, financial and human resources need to be allocated to promote research
that would inform the adoption of effective local and national laws, policies and programmes.
Policies and strategies should be reviewed regularly and revised accordingly. In taking these
measures, States parties have to take into account the evolving capacities of adolescents and involve
them in an appropriate manner in developing measures, including programmes, designed to protect
them. In this context, the Committee emphasizes the positive impact that peer education can have,
and the positive influence of proper role models, especially those in the worlds of arts, entertainment
and sports.
Data collection
9. Systematic data collection is necessary for States parties to be able to monitor the health and
development of adolescents. States parties should adopt data-collection mechanisms that allow
desegregation by sex, age, origin and socio-economic status so that the situation of different groups
can be followed. Data should also be collected to study the situation of specific groups such as
ethnic and/or indigenous minorities, migrant or refugee adolescents, adolescents with disabilities,
working adolescents, etc. Where appropriate, adolescents should participate in the analysis to ensure
that the information is understood and utilized in an adolescent-sensitive way.
II. CREATING A SAFE AND SUPPORTIVE ENVIRONMENT
10. The health and development of adolescents are strongly determined by the environments in
which they live. Creating a safe and supportive environment entails addressing attitudes and actions
of both the immediate environment of the adolescent - family, peers, schools and services - as well
as the wider environment created by, inter alia, community and religious leaders, the media, national
and local policies and legislation. The promotion and enforcement of the provisions and principles
of the Convention, especially articles 2-6, 12-17, 24, 28, 29 and 31, are key to guaranteeing
adolescents' right to health and development. States parties should take measures to raise awareness
and stimulate and/or regulate action through the formulation of policy or the adoption of legislation
and the implementation of programmes specifically for adolescents.
11. The Committee stresses the importance of the family environment, including the members of
the extended family and community or other persons legally responsible for the child or adolescent
(arts. 5 and 18). While most adolescents grow up in well-functioning family environments, for some
the family does not constitute a safe and supportive milieu.
12. The Committee calls upon States parties to develop and implement, in a manner consistent with
adolescents' evolving capacities, legislation, policies and programmes to promote the health and
development of adolescents by (a) providing parents (or legal guardians) with appropriate assistance
through the development of institutions, facilities and services that adequately support the well-being of adolescents, including, when needed, the provision of material assistance and support with
regard to nutrition, clothing and housing (art. 27 (3)); (b) providing adequate information and
parental support to facilitate the development of a relationship of trust and confidence in which
issues regarding, for example, sexuality and sexual behaviour and risky lifestyles can be openly
discussed and acceptable solutions found that respect the adolescent's rights (art. 27 (3)); (c)
providing adolescent mothers and fathers with support and guidance for both their own and their
children's well-being (art. 24 (f), 27 (2-3)); (d) giving, while respecting the values and norms of
ethnic and other minorities, special attention, guidance and support to adolescents and parents (or
legal guardians), whose traditions and norms may differ from those in the society where they live;
and (e) ensuring that interventions in the family to protect the adolescent and, when necessary,
separate her/him from the family, e.g. in case of abuse or neglect, are in accordance with applicable
laws and procedures. Such laws and procedures should be reviewed to ensure that they conform to
the principles of the Convention.
13. The school plays an important role in the life of many adolescents, as the venue for learning,
development and socialization. Article 29 (1) states that education must be directed to "the
development of the child's personality, talents and mental and physical abilities to their fullest
potential". In addition, general comment No. 1 on the aims of education states that "Education must
also be aimed at ensuring that ... no child leaves school without being equipped to face the
challenges that he or she can expect to be confronted with in life. Basic skills should include . the
ability to make well-balanced decisions; to resolve conflicts in a non-violent manner; and to develop
a healthy lifestyle [and] good social relationships ..." Considering the importance of appropriate
education for the current and future health and development of adolescents, as well as for their
children, the Committee urges States parties, in line with articles 28 and 29 of the Convention to (a)
ensure that quality primary education is compulsory and available, accessible and free to all and that
secondary and higher education are available and accessible to all adolescents; (b) provide well-functioning school and recreational facilities which do not pose health risks to students, including
water and sanitation and safe journeys to school; (c) take the necessary actions to prevent and
prohibit all forms of violence and abuse, including sexual abuse, corporal punishment and other
inhuman, degrading or humiliating treatment or punishment in school, by school personnel as well
as among students; (d) initiate and support measures, attitudes and activities that promote healthy
behaviour by including relevant topics in school curricula.
14. During adolescence, an increasing number of young people are leaving school to start working
to help support their families or for wages in the formal or informal sector. Participation in work
activities in accordance with international standards, as long as it does not jeopardize the enjoyment
of any of the other rights of adolescents, including health and education, may be beneficial for the
development of the adolescent. The Committee urges States parties to take all necessary measures
to abolish all forms of child labour, starting with the worst forms, to continuously review national
regulations on minimum ages for employment with a view to making them compatible with
international standards, and to regulate the working environment and conditions for adolescents who
are working (in accordance with article 32 of the Convention, as well as ILO Conventions Nos. 138
and 182), so as to ensure that they are fully protected and have access to legal redress mechanisms.
15. The Committee also stresses that in accordance with article 23 (3) of the Convention, the special
rights of adolescents with disabilities should be taken into account and assistance provided to ensure
that the disabled child/adolescent has effective access to and receives good quality education. States
should recognize the principle of equal primary, secondary and tertiary educational opportunities
for disabled children/adolescents, where possible in regular schools.
16. The Committee is concerned that early marriage and pregnancy are significant factors in health
problems related to sexual and reproductive health, including HIV/AIDS. Both the legal minimum
age and actual age of marriage, particularly for girls, are still very low in several States parties.
There are also non-health-related concerns: children who marry, especially girls, are often obliged
to leave the education system and are marginalized from social activities. Further, in some States
parties married children are legally considered adults, even if they are under 18, depriving them of
all the special protection measures they are entitled under the Convention. The Committee strongly
recommends that States parties review and, where necessary, reform their legislation and practice
to increase the minimum age for marriage with and without parental consent to 18 years, for both
girls and boys. The Committee on the Elimination of Discrimination against Women has made a
similar recommendation (general comment No. 21 of 1994).
17. In most countries accidental injuries or injuries due to violence are a leading cause of death or
permanent disability among adolescents. In that respect, the Committee is concerned about the
injuries and death resulting from road traffic accidents, which affect adolescents disproportionately.
States parties should adopt and enforce legislation and programmes to improve road safety,
including driving education for and examination of adolescents and the adoption or strengthening
of legislation known to be highly effective such as the obligations to have a valid driver's licence,
wear seat belts and crash helmets, and the designation of pedestrian areas.
18. The Committee is also very concerned about the high rate of suicide among this age group.
Mental disorders and psychosocial illness are relatively common among adolescents. In many
countries symptoms such as depression, eating disorders and self-destructive behaviours, sometimes
leading to self-inflicted injuries and suicide, are increasing. They may be related to, inter alia,
violence, ill-treatment, abuse and neglect, including sexual abuse, unrealistically high expectations,
and/or bullying or hazing in and outside school. States parties should provide these adolescents with
all the necessary services.
19. Violence results from a complex interplay of individual, family, community and societal factors.
Vulnerable adolescents such as those who are homeless or who are living in institutions, who belong
to gangs or who have been recruited as child soldiers are especially exposed to both institutional and
interpersonal violence. Under article 19 of the Convention, States parties must take all appropriate
measures |3| to prevent and eliminate: (a) institutional violence against adolescents, including through
legislation and administrative measures in relation to public and private institutions for adolescents
(schools, institutions for disabled adolescents, juvenile reformatories, etc.), and training and
monitoring of personnel in charge of institutionalized children or who otherwise have contact with
children through their work, including the police; and (b) interpersonal violence among adolescents,
including by supporting adequate parenting and opportunities for social and educational
development in early childhood, fostering non-violent cultural norms and values (as foreseen in
article 29 of the Convention), strictly controlling firearms and restricting access to alcohol and
drugs.
20. In light of articles 3, 6, 12, 19 and 24 (3) of the Convention, States parties should take all
effective measures to eliminate all acts and activities which threaten the right to life of adolescents,
including honour killings. The Committee strongly urges States parties to develop and implement
awareness-raising campaigns, education programmes and legislation aimed at changing prevailing
attitudes, and address gender roles and stereotypes that contribute to harmful traditional practices.
Further, States parties should facilitate the establishment of multidisciplinary information and advice
centres regarding the harmful aspects of some traditional practices, including early marriage and
female genital mutilation.
21. The Committee is concerned about the influence exerted on adolescent health behaviours by the
marketing of unhealthy products and lifestyles. In line with article 17 of the Convention, States
parties are urged to protect adolescents from information that is harmful to their health and
development, while underscoring their right to information and material from diverse national and
international sources. States parties are therefore urged to regulate or prohibit information on and
marketing of substances such as alcohol and tobacco, particularly when it targets children and
adolescents. |4|
III. INFORMATION, SKILLS DEVELOPMENT, COUNSELLING, AND HEALTH
SERVICES
22. Adolescents have the right to access adequate information essential for their health and
development and for their ability to participate meaningfully in society. It is the obligation of States
parties to ensure that all adolescent girls and boys, both in and out of school, are provided with, and
not denied, accurate and appropriate information on how to protect their health and development and
practise healthy behaviours. This should include information on the use and abuse, of tobacco,
alcohol and other substances, safe and respectful social and sexual behaviours, diet and physical
activity.
23. In order to act adequately on the information, adolescents need to develop the skills necessary,
including self-care skills, such as how to plan and prepare nutritionally balanced meals and proper
personal hygiene habits, and skills for dealing with particular social situations such as interpersonal
communication, decision-making, and coping with stress and conflict. States parties should
stimulate and support opportunities to build such skills through, inter alia, formal and informal
education and training programmes, youth organizations and the media.
24. In light of articles 3, 17 and 24 of the Convention, States parties should provide adolescents with
access to sexual and reproductive information, including on family planning and contraceptives, the
dangers of early pregnancy, the prevention of HIV/AIDS and the prevention and treatment of
sexually transmitted diseases (STDs). In addition, States parties should ensure that they have access
to appropriate information, regardless of their marital status and whether their parents or guardians
consent. It is essential to find proper means and methods of providing information that is adequate
and sensitive to the particularities and specific rights of adolescent girls and boys. To this end, States
parties are encouraged to ensure that adolescents are actively involved in the design and
dissemination of information through a variety of channels beyond the school, including youth
organizations, religious, community and other groups and the media.
25. Under article 24 of the Convention, States parties are urged to provide adequate treatment and
rehabilitation for adolescents with mental disorders, to make the community aware of the early signs
and symptoms and the seriousness of these conditions, and to protect adolescents from undue
pressures, including psychosocial stress. States parties are also urged to combat discrimination and
stigma surrounding mental disorders, in line with their obligations under article 2. Every adolescent
with a mental disorder has the right to be treated and cared for, as far as possible, in the community
in which he or she lives. Where hospitalization or placement in a psychiatric institution is necessary,
this decision should be made in accordance with the principle of the best interests of the child. In
the event of hospitalization or institutionalization, the patient should be given the maximum possible
opportunity to enjoy all his or her rights as recognized under the Convention, including the rights
to education and to have access to recreational activities. |5| Where appropriate, adolescents should
be separated from adults. States parties must ensure that adolescents have access to a personal
representative other than a family member to represent their interests, when necessary and
appropriate. |6| In accordance with article 25 of the Convention, States parties should undertake
periodic review of the placement of adolescents in hospitals or psychiatric institutions.
26. Adolescents, both girls and boys, are at risk of being infected with and affected by STDs,
including HIV/AIDS. |7| States should ensure that appropriate goods, services and information for the
prevention and treatment of STDs, including HIV/AIDS, are available and accessible. To this end,
States parties are urged (a) to develop effective prevention programmes, including measures aimed
at changing cultural views about adolescents' need for contraception and STD prevention and
addressing cultural and other taboos surrounding adolescent sexuality; (b) to adopt legislation to
combat practices that either increase adolescents' risk of infection or contribute to the
marginalization of adolescents who are already infected with STDs, including HIV; (c) to take
measures to remove all barriers hindering the access of adolescents to information, preventive
measures such as condoms, and care.
27. Adolescent girls should have access to information on the harm that early marriage and early
pregnancy can cause, and those who become pregnant should have access to health services that are
sensitive to their rights and particular needs. States parties should take measures to reduce maternal
morbidity and mortality in adolescent girls, particularly caused by early pregnancy and unsafe
abortion practices, and to support adolescent parents. Young mothers, especially where support is
lacking, may be prone to depression and anxiety, compromising their ability to care for their child.
The Committee urges States parties (a) to develop and implement programmes that provide access
to sexual and reproductive health services, including family planning, contraception and safe
abortion services where abortion is not against the law, adequate and comprehensive obstetric care
and counselling; (b) to foster positive and supportive attitudes towards adolescent parenthood for
their mothers and fathers; and (c) to develop policies that will allow adolescent mothers to continue
their education.
28. Before parents give their consent, adolescents need to have a chance to express their views freely
and their views should be given due weight, in accordance with article 12 of the Convention.
However, if the adolescent is of sufficient maturity, informed consent shall be obtained from the
adolescent her/himself, while informing the parents if that is in the "best interest of the child" (art.
3).
29. With regard to privacy and confidentiality, and the related issue of informed consent to
treatment, States parties should (a) enact laws or regulations to ensure that confidential advice
concerning treatment is provided to adolescents so that they can give their informed consent. Such
laws or regulations should stipulate an age for this process, or refer to the evolving capacity of the
child; and (b) provide training for health personnel on the rights of adolescents to privacy and
confidentiality, to be informed about planned treatment and to give their informed consent to
treatment.
IV. VULNERABILITY AND RISK
30. In ensuring respect for the right of adolescents to health and development, both individual
behaviours and environmental factors which increase their vulnerability and risk should be taken
into consideration. Environmental factors, such as armed conflict or social exclusion, increase the
vulnerability of adolescents to abuse, other forms of violence and exploitation, thereby severely
limiting adolescents' abilities to make individual, healthy behaviour choices. For example, the
decision to engage in unsafe sex increases adolescents' risk of ill-health.
31. In accordance with article 23 of the Convention, adolescents with mental and/or physical
disabilities have an equal right to the highest attainable standard of physical and mental health.
States parties have an obligation to provide adolescents with disabilities with the means necessary
to realize their rights. |8| States parties should (a) ensure that health facilities, goods and services are
available and accessible to all adolescents with disabilities and that these facilities and services
promote their self-reliance and their active participation in the community; (b) ensure that the
necessary equipment and personal support are available to enable them to move around, participate
and communicate; (c) pay specific attention to the special needs relating to the sexuality of
adolescents with disabilities; and (d) remove barriers that hinder adolescents with disabilities in
realizing their rights.
32. States parties have to provide special protection to homeless adolescents, including those
working in the informal sector. Homeless adolescents are particularly vulnerable to violence, abuse
and sexual exploitation from others, self-destructive behaviour, substance abuse and mental
disorders. In this regard, States parties are required to (a) develop policies and enact and enforce
legislation that protect such adolescents from violence, e.g. by law enforcement officials; (b)
develop strategies for the provision of appropriate education and access to health care, and of
opportunities for the development of livelihood skills.
33. Adolescents who are sexually exploited, including in prostitution and pornography, are exposed
to significant health risks, including STDs, HIV/AIDS, unwanted pregnancies, unsafe abortions,
violence and psychological distress. They have the right to physical and psychological recovery and
social reintegration in an environment that fosters health, self-respect and dignity (art. 39). It is the
obligation of States parties to enact and enforce laws to prohibit all forms of sexual exploitation and
related trafficking; to collaborate with other States parties to eliminate intercountry trafficking; and
to provide appropriate health and counselling services to adolescents who have been sexually
exploited, making sure that they are treated as victims and not as offenders.
34. Additionally, adolescents experiencing poverty, armed conflicts, all forms of injustice, family
breakdown, political, social and economic instability and all types of migration may be particularly
vulnerable. These situations might seriously hamper their health and development. By investing
heavily in preventive policies and measures States parties can drastically reduce levels of
vulnerability and risk factors; they will also provide cost-effective ways for society to help
adolescents develop harmoniously in a free society.
V. NATURE OF STATES' OBLIGATIONS
35. In exercising their obligations in relation to the health and development of adolescents, States
parties shall always take fully into account the four general principles of the Convention. It is the
view of the Committee that States parties must take all appropriate legislative, administrative and
other measures for the realization and monitoring of the rights of adolescents to health and
development as recognized in the Convention. To this end, States parties must notably fulfil the
following obligations:
(a) To create a safe and supportive environment for adolescents, including within their
family, in schools, in all types of institutions in which they may live, within their workplace and/or
in the society at large;
(b) To ensure that adolescents have access to the information that is essential for their health and
development and that they have opportunities to participate in decisions affecting their health
(notably through informed consent and the right of confidentiality), to acquire life skills, to obtain
adequate and age-appropriate information, and to make appropriate health behaviour choices;
(c) To ensure that health facilities, goods and services, including counselling and health services for
mental and sexual and reproductive health, of appropriate quality and sensitive to adolescents'
concerns are available to all adolescents;
(d) To ensure that adolescent girls and boys have the opportunity to participate actively in planning
and programming for their own health and development;
(e) To protect adolescents from all forms of labour which may jeopardize the enjoyment of their
rights, notably by abolishing all forms of child labour and by regulating the working environment
and conditions in accordance with international standards;
(f) To protect adolescents from all forms of intentional and unintentional injuries, including those
resulting from violence and road traffic accidents;
(g) To protect adolescents from all harmful traditional practices, such as early marriages, honour
killings and female genital mutilation;
(h) To ensure that adolescents belonging to especially vulnerable groups are fully taken into account
in the fulfilment of all aforementioned obligations;
(i) To implement measures for the prevention of mental disorders and the promotion of mental
health of adolescents.
36. The Committee draws the attention of States parties to the general comment No. 14 on the right
to the highest attainable standard of health of the Committee on Economic, Social and Cultural
Rights which states that, "States parties should provide a safe and supportive environment for
adolescents that ensures the opportunity to participate in decisions affecting their health, to build life
skills, to acquire appropriate information, to receive counselling and to negotiate the health-behaviour choices they make. The realization of the right to health of adolescents is dependent on
the development of youth-sensitive health care, which respects confidentiality and privacy and
includes appropriate sexual and reproductive health services."
37. In accordance with articles 24, 39 and other related provisions of the Convention, States parties
should provide health services that are sensitive to the particular needs and human rights of all
adolescents, paying attention to the following characteristics:
(a) Availability. Primary health care should include services sensitive to the needs of
adolescents, with special attention given to sexual and reproductive health and mental health;
(b) Accessibility. Health facilities, goods and services should be known and easily accessible
(economically, physically and socially) to all adolescents, without discrimination. Confidentiality
should be guaranteed, when necessary;
(c) Acceptability. While fully respecting the provisions and principles of the Convention, all health
facilities, goods and services should respect cultural values, be gender sensitive, be respectful of
medical ethics and be acceptable to both adolescents and the communities in which they live;
(d) Quality. Health services and goods should be scientifically and medically appropriate, which
requires personnel trained to care for adolescents, adequate facilities and scientifically accepted
methods.
38. States parties should, where feasible, adopt a multisectoral approach to the promotion and
protection of adolescent health and development by facilitating effective and sustainable linkages
and partnerships among all relevant actors. At the national level, such an approach calls for close
and systematic collaboration and coordination within Government, so as to ensure the necessary
involvement of all relevant government entities. Public health and other services utilized by
adolescents should also be encouraged and assisted in seeking collaboration with, inter alia, private
and/or traditional practitioners, professional associations, pharmacies and organizations that provide
services to vulnerable groups of adolescents.
39. A multisectoral approach to the promotion and protection of adolescent health and development
will not be effective without international cooperation. Therefore, States parties should, when
appropriate, seek such cooperation with United Nations specialized agencies, programmes and
bodies, international NGOs and bilateral aid agencies, international professional associations and
other non-State actors.
Notes:
1. These include the International Covenant on Civil and Political Rights, the International Covenant
on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, the International Convention on the Elimination of All
Forms of Racial Discrimination, the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families and the Convention on the Elimination of All
Forms of Discrimination Against Women. [Back]
2. See also the reports of the Committee's days of general discussion on "Violence against children"
held in 2000 and 2001 and the Recommendations adopted in this regard (see CRC/C/100, chap. V
and CRC/C/111, chap. V). [Back]
3. Ibid. [Back]
4. As proposed in the Framework Convention on Tobacco Control (2003) of the World Health
Organization. [Back]
5. For further guidance on this subject, refer to the Principles for the Protection of Persons with
Mental Illness and for the Improvement of Mental Health Care, (General Assembly resolution
46/119 of 17 December 1991, annex). [Back]
6. Ibid., in particular principles 2, 3 and 7. [Back]
7. For further guidance on this issue, see general comment No. 3 (2003) on HIV/AIDS and the rights
of children. [Back]
8. United Nations Standard Rules on Equal Opportunities for Persons with Disabilities [Back]
Thirty-fourth session (2003)
General comment No. 5:
General measures of implementation of the Convention on the Rights of the Child (arts. 4,
42 and 44, para. 6)
Foreword
1. The Committee on the Rights of the Child has drafted this general comment to outline States
parties' obligations to develop what it has termed "general measures of implementation". The various
elements of the concept are complex and the Committee emphasizes that it is likely to issue more
detailed general comments on individual elements in due course, to expand on this outline. Its
general comment No. 2 (2002) entitled "The role of independent national human rights institutions
in the protection and promotion of the rights of the child" has already expanded on this concept.
Article 4
"States parties shall undertake all appropriate legislative, administrative, and other measures for the
implementation of the rights recognized in the present Convention. With regard to economic, social
and cultural rights, States parties shall undertake such measures to the maximum extent of their
available resources and, where needed, within the framework of international cooperation."
I. INTRODUCTION
2. When a State ratifies the Convention on the Rights of the Child, it takes on obligations under
international law to implement it. Implementation is the process whereby States parties take action
to ensure the realization of all rights in the Convention for all children in their jurisdiction. |1| Article
4 requires States parties to take "all appropriate legislative, administrative and other measures" for
implementation of the rights contained therein. While it is the State which takes on obligations under
the Convention, its task of implementation - of making reality of the human rights of children -
needs to engage all sectors of society and, of course, children themselves. Ensuring that all domestic
legislation is fully compatible with the Convention and that the Convention's principles and
provisions can be directly applied and appropriately enforced is fundamental. In addition, the
Committee on the Rights of the Child has identified a wide range of measures that are needed for
effective implementation, including the development of special structures and monitoring, training
and other activities in Government, parliament and the judiciary at all levels. |2|
3. In its periodic examination of States parties' reports under the Convention, the Committee pays
particular attention to what it has termed "general measures of implementation". In its concluding
observations issued following examination, the Committee provides specific recommendations
relating to general measures. It expects the State party to describe action taken in response to these
recommendations in its subsequent periodic report. The Committee's reporting guidelines arrange
the Convention's articles in clusters, |3| the first being on "general measures of implementation" and
groups article 4 with article 42 (the obligation to make the content of the Convention widely known
to children and adults; see paragraph 66 below) and article 44, paragraph 6 (the obligation to make
reports widely available within the State; see paragraph 71 below).
4. In addition to these provisions, other general implementation obligations are set out in article 2:
"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 ..."
5. Also under article 3, paragraph 2, "States parties undertake to ensure the child such protection and
care as is necessary for his or her well-being, taking into account the rights and duties of his or her
parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall
take all appropriate legislative and administrative measures."
6. In international human rights law, there are articles similar to article 4 of the Convention, setting
out overall implementation obligations, such as article 2 of the International Covenant on Civil and
Political Rights and article 2 of the International Covenant on Economic, Social and Cultural Rights.
The Human Rights Committee and the Committee on Economic, Social and Cultural Rights have
issued general comments in relation to these provisions which should be seen as complementary to
the present general comment and which are referred to below. |4|
7. Article 4, while reflecting States parties' overall implementation obligations, suggests a distinction
between civil and political rights and economic, social and cultural rights in its second sentence:
"With regard to economic, social and cultural rights, States parties shall undertake such measures
to the maximum extent of their available resources and, where needed, within the framework of
international cooperation." There is no simple or authoritative division of human rights in general
or of Convention rights into the two categories. The Committee's reporting guidelines group articles
7, 8, 13-17 and 37 (a) under the heading "Civil rights and freedoms", but indicate by the context that
these are not the only civil and political rights in the Convention. Indeed, it is clear that many other
articles, including articles 2, 3, 6 and 12 of the Convention, contain elements which constitute
civil/political rights, thus reflecting the interdependence and indivisibility of all human rights.
Enjoyment of economic, social and cultural rights is inextricably intertwined with enjoyment of civil
and political rights. As noted in paragraph 25 below, the Committee believes that economic, social
and cultural rights, as well as civil and political rights, should be regarded as justiciable.
8. The second sentence of article 4 reflects a realistic acceptance that lack of resources - financial
and other resources - can hamper the full implementation of economic, social and cultural rights in
some States; this introduces the concept of "progressive realization" of such rights: States need to
be able to demonstrate that they have implemented "to the maximum extent of their available
resources" and, where necessary, have sought international cooperation. When States ratify the
Convention, they take upon themselves obligations not only to implement it within their jurisdiction,
but also to contribute, through international cooperation, to global implementation (see paragraph
60 below).
9. The sentence is similar to the wording used in the International Covenant on Economic, Social
and Cultural Rights and the Committee entirely concurs with the Committee on Economic, Social
and Cultural Rights in asserting that "even where the available resources are demonstrably
inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment
of the relevant rights under the prevailing circumstances ...". |5| Whatever their economic
circumstances, States are required to undertake all possible measures towards the realization of the
rights of the child, paying special attention to the most disadvantaged groups.
10. The general measures of implementation identified by the Committee and described in the
present general comment are intended to promote the full enjoyment of all rights in the Convention
by all children, through legislation, the establishment of coordinating and monitoring bodies -
governmental and independent - comprehensive data collection, awareness-raising and training and
the development and implementation of appropriate policies, services and programmes. One of the
satisfying results of the adoption and almost universal ratification of the Convention has been the
development at the national level of a wide variety of new child-focused and child-sensitive bodies,
structures and activities - children's rights units at the heart of Government, ministers for children,
inter-ministerial committees on children, parliamentary committees, child impact analysis, children's
budgets and "state of children's rights" reports, NGO coalitions on children's rights, children's
ombudspersons and children's rights commissioners and so on.
11. While some of these developments may seem largely cosmetic, their emergence at the least
indicates a change in the perception of the child's place in society, a willingness to give higher
political priority to children and an increasing sensitivity to the impact of governance on children
and their human rights.
12. The Committee emphasizes that, in the context of the Convention, States must see their role as
fulfilling clear legal obligations to each and every child. Implementation of the human rights of
children must not be seen as a charitable process, bestowing favours on children.
The development of a children's rights perspective throughout Government, parliament and the
judiciary is required for effective implementation of the whole Convention and, in particular, in the
light of the following articles in the Convention identified by the Committee as general principles:
Article 2: the obligation of States to respect and ensure the rights set forth in the Convention
to each child within their jurisdiction without discrimination of any kind. This non-discrimination obligation requires States actively to identify individual children and groups of
children the recognition and realization of whose rights may demand special measures. For example,
the Committee highlights, in particular, the need for data collection to be disaggregated to enable
discrimination or potential discrimination to be identified. Addressing discrimination may require
changes in legislation, administration and resource allocation, as well as educational measures to
change attitudes. It should be emphasized that the application of the non-discrimination principle
of equal access to rights does not mean identical treatment. A general comment by the Human
Rights Committee has underlined the importance of taking special measures in order to diminish or
eliminate conditions that cause discrimination. |6|
Article 3 (1): the best interests of the child as a primary consideration in all actions concerning
children. The article refers to actions undertaken by "public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies". The principle requires active
measures throughout Government, parliament and the judiciary. Every legislative, administrative
and judicial body or institution is required to apply the best interests principle by systematically
considering how children's rights and interests are or will be affected by their decisions and actions -
by, for example, a proposed or existing law or policy or administrative action or court decision,
including those which are not directly concerned with children, but indirectly affect children.
Article 6: the child's inherent right to life and States parties' obligation to ensure to the
maximum extent possible the survival and development of the child. The Committee expects
States to interpret "development" in its broadest sense as a holistic concept, embracing the child's
physical, mental, spiritual, moral, psychological and social development. Implementation measures
should be aimed at achieving the optimal development for all children.
Article 12: the child's right to express his or her views freely in "all matters affecting the
child", those views being given due weight. This principle, which highlights the role of the child
as an active participant in the promotion, protection and monitoring of his or her rights, applies
equally to all measures adopted by States to implement the Convention.
Opening government decision-making processes to children is a positive challenge which the
Committee finds States are increasingly responding to. Given that few States as yet have reduced
the voting age below 18, there is all the more reason to ensure respect for the views of
unenfranchised children in Government and parliament. If consultation is to be meaningful,
documents as well as processes need to be made accessible. But appearing to "listen" to children is
relatively unchallenging; giving due weight to their views requires real change. Listening to children
should not be seen as an end in itself, but rather as a means by which States make their interactions
with children and their actions on behalf of children ever more sensitive to the implementation of
children's rights.
One-off or regular events like Children's Parliaments can be stimulating and raise general awareness.
But article 12 requires consistent and ongoing arrangements. Involvement of and consultation with
children must also avoid being tokenistic and aim to ascertain representative views. The emphasis
on "matters that affect them" in article 12 (1) implies the ascertainment of the views of particular
groups of children on particular issues - for example children who have experience of the juvenile
justice system on proposals for law reform in that area, or adopted children and children in adoptive
families on adoption law and policy. It is important that Governments develop a direct relationship
with children, not simply one mediated through non-governmental organizations (NGOs) or human
rights institutions. In the early years of the Convention, NGOs had played a notable role in
pioneering participatory approaches with children, but it is in the interests of both Governments and
children to have appropriate direct contact.
II. REVIEW OF RESERVATIONS
13. In its reporting guidelines on general measures of implementation, the Committee starts by
inviting the State party to indicate whether it considers it necessary to maintain the reservations it
has made, if any, or has the intention of withdrawing them. |7| States parties to the Convention are
entitled to make reservations at the time of their ratification of or accession to it (art. 51). The
Committee's aim of ensuring full and unqualified respect for the human rights of children can be
achieved only if States withdraw their reservations. It consistently recommends during its
examination of reports that reservations be reviewed and withdrawn. Where a State, after review,
decides to maintain a reservation, the Committee requests that a full explanation be included in the
next periodic report. The Committee draws the attention of States parties to the encouragement
given by the World Conference on Human Rights to the review and withdrawal of reservations. |8|
14. Article 2 of the Vienna Convention on the Law of Treaties defines "reservation" as a "unilateral
statement, however phrased or named, made by a State, when signing, ratifying, accepting,
approving or acceding to a Treaty, whereby it purports to exclude or to modify the legal effect of
certain provisions of the Treaty in their application to that State". The Vienna Convention notes that
States are entitled, at the time of ratification or accession to a treaty, to make a reservation unless
it is "incompatible with the object and purpose of the treaty" (art. 19).
15. Article 51, paragraph 2, of the Convention on the Rights of the Child reflects this: "A reservation
incompatible with the object and purpose of the present Convention shall not be permitted." The
Committee is deeply concerned that some States have made reservations which plainly breach article
51 (2) by suggesting, for example, that respect for the Convention is limited by the State's existing
Constitution or legislation, including in some cases religious law. Article 27 of the Vienna
Convention on the Law of Treaties provides: "A party may not invoke the provisions of its internal
law as justification for its failure to perform a treaty."
16. The Committee notes that, in some cases, States parties have lodged formal objections to such
wide-ranging reservations made by other States parties. It commends any action which contributes
to ensuring the fullest possible respect for the Convention in all States parties.
III. RATIFICATION OF OTHER KEY INTERNATIONAL HUMAN RIGHTS
INSTRUMENTS
17. As part of its consideration of general measures of implementation, and in the light of the
principles of indivisibility and interdependence of human rights, the Committee consistently urges
States parties, if they have not already done so, to ratify the two Optional Protocols to the
Convention on the Rights of the Child (on the involvement of children in armed conflict and on the
sale of children, child prostitution and child pornography) and the six other major international
human rights instruments. During its dialogue with States parties the Committee often encourages
them to consider ratifying other relevant international instruments. A non-exhaustive list of these
instruments is annexed to the present general comment, which the Committee will update from time
to time.
IV. LEGISLATIVE MEASURES
18. The Committee believes a comprehensive review of all domestic legislation and related
administrative guidance to ensure full compliance with the Convention is an obligation. Its
experience in examining not only initial but now second and third periodic reports under the
Convention suggests that the review process at the national level has, in most cases, been started,
but needs to be more rigorous. The review needs to consider the Convention not only article by
article, but also holistically, recognizing the interdependence and indivisibility of human rights. The
review needs to be continuous rather than one-off, reviewing proposed as well as existing
legislation. And while it is important that this review process should be built into the machinery of
all relevant government departments, it is also advantageous to have independent review by, for
example, parliamentary committees and hearings, national human rights institutions, NGOs,
academics, affected children and young people and others.
19. States parties need to ensure, by all appropriate means, that the provisions of the Convention are
given legal effect within their domestic legal systems. This remains a challenge in many States
parties. Of particular importance is the need to clarify the extent of applicability of the Convention
in States where the principle of "self-execution" applies and others where it is claimed that the
Convention "has constitutional status" or has been incorporated into domestic law.
20. The Committee welcomes the incorporation of the Convention into domestic law, which is the
traditional approach to the implementation of international human rights instruments in some but
not all States. Incorporation should mean that the provisions of the Convention can be directly
invoked before the courts and applied by national authorities and that the Convention will prevail
where there is a conflict with domestic legislation or common practice. Incorporation by itself does
not avoid the need to ensure that all relevant domestic law, including any local or customary law,
is brought into compliance with the Convention. In case of any conflict in legislation, predominance
should always be given to the Convention, in the light of article 27 of the Vienna Convention on the
Law of Treaties. Where a State delegates powers to legislate to federated regional or territorial
governments, it must also require these subsidiary governments to legislate within the framework
of the Convention and to ensure effective implementation (see also paragraphs 40 et seq. below).
21. Some States have suggested to the Committee that the inclusion in their Constitution of
guarantees of rights for "everyone" is adequate to ensure respect for these rights for children. The
test must be whether the applicable rights are truly realized for children and can be directly invoked
before the courts. The Committee welcomes the inclusion of sections on the rights of the child in
national constitutions, reflecting key principles in the Convention, which helps to underline the key
message of the Convention - that children alongside adults are holders of human rights. But this
inclusion does not automatically ensure respect for the rights of children. In order to promote the
full implementation of these rights, including, where appropriate, the exercise of rights by children
themselves, additional legislative and other measures may be necessary.
22. The Committee emphasizes, in particular, the importance of ensuring that domestic law reflects
the identified general principles in the Convention (arts. 2, 3, 6 and 12 (see paragraph 12 above)).
The Committee welcomes the development of consolidated children's rights statutes, which can
highlight and emphasize the Convention's principles. But the Committee emphasizes that it is crucial
in addition that all relevant "sectoral" laws (on education, health, justice and so on) reflect
consistently the principles and standards of the Convention.
23. The Committee encourages all States parties to enact and implement within their jurisdiction
legal provisions that are more conducive to the realization of the rights of the child than those
contained in the Convention, in the light of article 41. The Committee emphasizes that the other
international human rights instruments apply to all persons below the age of 18 years.
V. JUSTICIABILITY OF RIGHTS
24. For rights to have meaning, effective remedies must be available to redress violations. This
requirement is implicit in the Convention and consistently referred to in the other six major
international human rights treaties. Children's special and dependent status creates real difficulties
for them in pursuing remedies for breaches of their rights. So States need to give particular attention
to ensuring that there are effective, child-sensitive procedures available to children and their
representatives. These should include the provision of child-friendly information, advice, advocacy,
including support for self-advocacy, and access to independent complaints procedures and to the
courts with necessary legal and other assistance. Where rights are found to have been breached,
there should be appropriate reparation, including compensation, and, where needed, measures to
promote physical and psychological recovery, rehabilitation and reintegration, as required by article
39.
25. As noted in paragraph 6 above, the Committee emphasizes that economic, social and cultural
rights, as well as civil and political rights, must be regarded as justiciable. It is essential that
domestic law sets out entitlements in sufficient detail to enable remedies for non-compliance to be
effective.
VI. ADMINISTRATIVE AND OTHER MEASURES
26. The Committee cannot prescribe in detail the measures which each or every State party will find
appropriate to ensure effective implementation of the Convention. But from its first decade's
experience of examining States parties' reports and from its ongoing dialogue with Governments and
with the United Nations and United Nations-related agencies, NGOs and other competent bodies,
it has distilled here some key advice for States.
27. The Committee believes that effective implementation of the Convention requires visible cross-sectoral coordination to recognize and realize children's rights across Government, between different
levels of government and between Government and civil society - including in particular children
and young people themselves. Invariably, many different government departments and other
governmental or quasi-governmental bodies affect children's lives and children's enjoyment of their
rights. Few, if any, government departments have no effect on children's lives, direct or indirect.
Rigorous monitoring of implementation is required, which should be built into the process of
government at all levels but also independent monitoring by national human rights institutions,
NGOs and others.
A. Developing a comprehensive national strategy rooted in the Convention
28. If Government as a whole and at all levels is to promote and respect the rights of the child, it
needs to work on the basis of a unifying, comprehensive and rights-based national strategy, rooted
in the Convention.
29. The Committee commends the development of a comprehensive national strategy or national
plan of action for children, built on the framework of the Convention. The Committee expects States
parties to take account of the recommendations in its concluding observations on their periodic
reports when developing and/or reviewing their national strategies. If such a strategy is to be
effective, it needs to relate to the situation of all children, and to all the rights in the Convention. It
will need to be developed through a process of consultation, including with children and young
people and those living and working with them. As noted above (para. 12), meaningful consultation
with children requires special child-sensitive materials and processes; it is not simply about
extending to children access to adult processes.
30. Particular attention will need to be given to identifying and giving priority to marginalized and
disadvantaged groups of children. The non-discrimination principle in the Convention requires that
all the rights guaranteed by the Convention should be recognized for all children within the
jurisdiction of States. As noted above (para. 12), the non-discrimination principle does not prevent
the taking of special measures to diminish discrimination.
31. To give the strategy authority, it will need to be endorsed at the highest level of government.
Also, it needs to be linked to national development planning and included in national budgeting;
otherwise, the strategy may remain marginalized outside key decision-making processes.
32. The strategy must not be simply a list of good intentions; it must include a description of a
sustainable process for realizing the rights of children throughout the State; it must go beyond
statements of policy and principle, to set real and achievable targets in relation to the full range of
economic, social and cultural and civil and political rights for all children. The comprehensive
national strategy may be elaborated in sectoral national plans of action - for example for education
and health - setting out specific goals, targeted implementation measures and allocation of financial
and human resources. The strategy will inevitably set priorities, but it must not neglect or dilute in
any way the detailed obligations which States parties have accepted under the Convention. The
strategy needs to be adequately resourced, in human and financial terms.
33. Developing a national strategy is not a one-off task. Once drafted the strategy will need to be
widely disseminated throughout Government and to the public, including children (translated into
child-friendly versions as well as into appropriate languages and forms). The strategy will need to
include arrangements for monitoring and continuous review, for regular updating and for periodic
reports to parliament and to the public.
34. The "national plans of action" which States were encouraged to develop following the first
World Summit for Children, held in 1990, were related to the particular commitments set by nations
attending the Summit. |9| In 1993, the Vienna Declaration and Programme of Action, adopted by the
World Conference on Human Rights, called on States to integrate the Convention on the Rights of
the Child into their national human rights action plans. |10|
35. The outcome document of the United Nations General Assembly special session on children, in
2002, also commits States "to develop or strengthen as a matter of urgency if possible by the end
of 2003 national and, where appropriate, regional action plans with a set of specific time-bound and
measurable goals and targets based on this plan of action ...". |11| The Committee welcomes the
commitments made by States to achieve the goals and targets set at the special session on children
and identified in the outcome document, A World Fit for Children. But the Committee emphasizes
that making particular commitments at global meetings does not in any way reduce States parties'
legal obligations under the Convention. Similarly, preparing specific plans of action in response to
the special session does not reduce the need for a comprehensive implementation strategy for the
Convention. States should integrate their response to the 2002 special session and to other relevant
global conferences into their overall implementation strategy for the Convention as a whole.
36. The outcome document also encourages States parties to "consider including in their reports to
the Committee on the Rights of the Child information on measures taken and results achieved in the
implementation of the present Plan of Action". |12| The Committee endorses this proposal; it is
committed to monitoring progress towards meeting the commitments made at the special session
and will provide further guidance in its revised guidelines for periodic reporting under the
Convention.
B. Coordination of implementation of children's rights
37. In examining States parties' reports the Committee has almost invariably found it necessary to
encourage further coordination of government to ensure effective implementation: coordination
among central government departments, among different provinces and regions, between central and
other levels of government and between Government and civil society. The purpose of coordination
is to ensure respect for all of the Convention's principles and standards for all children within the
State jurisdiction; to ensure that the obligations inherent in ratification of or accession to the
Convention are not only recognized by those large departments which have a substantial impact on
children - education, health or welfare and so on - but right across Government, including for
example departments concerned with finance, planning, employment and defence, and at all levels.
38. The Committee believes that, as a treaty body, it is not advisable for it to attempt to prescribe
detailed arrangements appropriate for very different systems of government across States parties.
There are many formal and informal ways of achieving effective coordination, including for
example inter-ministerial and interdepartmental committees for children. The Committee proposes
that States parties, if they have not already done so, should review the machinery of government
from the perspective of implementation of the Convention and in particular of the four articles
identified as providing general principles (see paragraph 12 above).
39. Many States parties have with advantage developed a specific department or unit close to the
heart of Government, in some cases in the President's or Prime Minister's or Cabinet office, with the
objective of coordinating implementation and children's policy. As noted above, the actions of
virtually all government departments impact on children's lives. It is not practicable to bring
responsibility for all children's services together into a single department, and in any case doing so
could have the danger of further marginalizing children in Government. But a special unit, if given
high-level authority - reporting directly, for example, to the Prime Minister, the President or a
Cabinet Committee on children - can contribute both to the overall purpose of making children more
visible in Government and to coordination to ensure respect for children's rights across Government
and at all levels of Government. Such a unit can be given responsibility for developing the
comprehensive children's strategy and monitoring its implementation, as well as for coordinating
reporting under the Convention.
C. Decentralization, federalization and delegation
40. The Committee has found it necessary to emphasize to many States that decentralization of
power, through devolution and delegation of government, does not in any way reduce the direct
responsibility of the State party's Government to fulfil its obligations to all children within its
jurisdiction, regardless of the State structure.
41. The Committee reiterates that in all circumstances the State which ratified or acceded to the
Convention remains responsible for ensuring the full implementation of the Convention throughout
the territories under its jurisdiction. In any process of devolution, States parties have to make sure
that the devolved authorities do have the necessary financial, human and other resources effectively
to discharge responsibilities for the implementation of the Convention. The Governments of States
parties must retain powers to require full compliance with the Convention by devolved
administrations or local authorities and must establish permanent monitoring mechanisms to ensure
that the Convention is respected and applied for all children within its jurisdiction without
discrimination. Further, there must be safeguards to ensure that decentralization or devolution does
not lead to discrimination in the enjoyment of rights by children in different regions.
D. Privatization
42. The process of privatization of services can have a serious impact on the recognition and
realization of children's rights. The Committee devoted its 2002 day of general discussion to the
theme "The private sector as service provider and its role in implementing child rights", defining
the private sector as including businesses, NGOs and other private associations, both for profit and
not-for-profit. Following that day of general discussion, the Committee adopted detailed
recommendations to which it draws the attention of States parties. |13|
43. The Committee emphasizes that States parties to the Convention have a legal obligation to
respect and ensure the rights of children as stipulated in the Convention, which includes the
obligation to ensure that non-State service providers operate in accordance with its provisions, thus
creating indirect obligations on such actors.
44. The Committee emphasizes that enabling the private sector to provide services, run institutions
and so on does not in any way lessen the State's obligation to ensure for all children within its
jurisdiction the full recognition and realization of all rights in the Convention (arts. 2 (1) and 3 (2)).
Article 3 (1) establishes that the best interests of the child shall be a primary consideration in all
actions concerning children, whether undertaken by public or private bodies. Article 3 (3) requires
the establishment of appropriate standards by competent bodies (bodies with the appropriate legal
competence), in particular, in the areas of health, and with regard to the number and suitability of
staff. This requires rigorous inspection to ensure compliance with the Convention. The Committee
proposes that there should be a permanent monitoring mechanism or process aimed at ensuring that
all State and non-State service providers respect the Convention.
E. Monitoring implementation - the need for child impact assessment and evaluation
45. Ensuring that the best interests of the child are a primary consideration in all actions concerning
children (art. 3 (1)), and that all the provisions of the Convention are respected in legislation and
policy development and delivery at all levels of government demands a continuous process of child
impact assessment (predicting the impact of any proposed law, policy or budgetary allocation which
affects children and the enjoyment of their rights) and child impact evaluation (evaluating the actual
impact of implementation). This process needs to be built into government at all levels and as early
as possible in the development of policy.
46. 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 (see paragraph 65 below).
47. The Committee commends certain States which have adopted legislation requiring the
preparation and presentation to parliament and/or the public of formal impact analysis statements.
Every State should consider how it can ensure compliance with article 3 (1) and do so in a way
which further promotes the visible integration of children in policy-making and sensitivity to their
rights.
F. Data collection and analysis and development of indicators
48. Collection of sufficient and reliable data on children, disaggregated to enable identification of
discrimination and/or disparities in the realization of rights, is an essential part of implementation.
The Committee reminds States parties that data collection needs to extend over the whole period of
childhood, up to the age of 18 years. It also needs to be coordinated throughout the jurisdiction,
ensuring nationally applicable indicators. States should collaborate with appropriate research
institutes and aim to build up a complete picture of progress towards implementation, with
qualitative as well as quantitative studies. The reporting guidelines for periodic reports call for
detailed disaggregated statistical and other information covering all areas of the Convention. It is
essential not merely to establish effective systems for data collection, but to ensure that the data
collected are evaluated and used to assess progress in implementation, to identify problems and to
inform all policy development for children. Evaluation requires the development of indicators
related to all rights guaranteed by the Convention.
49. The Committee commends States parties which have introduced annual publication of
comprehensive reports on the state of children's rights throughout their jurisdiction. Publication and
wide dissemination of and debate on such reports, including in parliament, can provide a focus for
broad public engagement in implementation. Translations, including child-friendly versions, are
essential for engaging children and minority groups in the process.
50. The Committee emphasizes that, in many cases, only children themselves are in a position to
indicate whether their rights are being fully recognized and realized. Interviewing children and using
children as researchers (with appropriate safeguards) is likely to be an important way of finding out,
for example, to what extent their civil rights, including the crucial right set out in article 12, to have
their views heard and given due consideration, are respected within the family, in schools and so on.
G. Making children visible in budgets
51. In its reporting guidelines and in the consideration of States parties' reports, the Committee has
paid much attention to the identification and analysis of resources for children in national and other
budgets. |14| No State can tell whether it is fulfilling children's economic, social and cultural rights "to
the maximum extent of . available resources", as it is required to do under article 4, unless it can
identify the proportion of national and other budgets allocated to the social sector and, within that,
to children, both directly and indirectly. Some States have claimed it is not possible to analyse
national budgets in this way. But others have done it and publish annual "children's budgets". The
Committee needs to know what steps are taken at all levels of Government to ensure that economic
and social planning and decision-making and budgetary decisions are made with the best interests
of children as a primary consideration and that children, including in particular marginalized and
disadvantaged groups of children, are protected from the adverse effects of economic policies or
financial downturns.
52. Emphasizing that economic policies are never neutral in their effect on children's rights, the
Committee has been deeply concerned by the often negative effects on children of structural
adjustment programmes and transition to a market economy. The implementation duties of article
4 and other provisions of the Convention demand rigorous monitoring of the effects of such changes
and adjustment of policies to protect children's economic, social and cultural rights.
H. Training and capacity-building
53. The Committee emphasizes States' obligation to develop training and capacity-building for all
those involved in the implementation process - government officials, parliamentarians and members
of the judiciary - and for all those working with and for children. These include, for example,
community and religious leaders, teachers, social workers and other professionals, including those
working with children in institutions and places of detention, the police and armed forces, including
peacekeeping forces, those working in the media and many others. Training needs to be systematic
and ongoing - initial training and retraining. The purpose of training is to emphasize the status of
the child as a holder of human rights, to increase knowledge and understanding of the Convention
and to encourage active respect for all its provisions. The Committee expects to see the Convention
reflected in professional training curricula, codes of conduct and educational curricula at all levels.
Understanding and knowledge of human rights must, of course, be promoted among children
themselves, through the school curriculum and in other ways (see also paragraph 69 below and the
Committee's general comment No. 1 (2001) on the aims of education).
54. The Committee's guidelines for periodic reports mention many aspects of training, including
specialist training, which are essential if all children are to enjoy their rights. The Convention
highlights the importance of the family in its preamble and in many articles. It is particularly
important that the promotion of children's rights should be integrated into preparation for parenthood
and parenting education.
55. There should be periodic evaluation of the effectiveness of training, reviewing not only
knowledge of the Convention and its provisions but also the extent to which it has contributed to
developing attitudes and practice which actively promote enjoyment by children of their rights.
I. Cooperation with civil society
56. Implementation is an obligation for States parties, but needs to engage all sectors of society,
including children themselves. The Committee recognizes that responsibilities to respect and ensure
the rights of children extend in practice beyond the State and State-controlled services and
institutions to include children, parents and wider families, other adults, and non-State services and
organizations. The Committee concurs, for example, with general comment No. 14 (2000) of the
Committee on Economic, Social and Cultural Rights on the right to the highest attainable standard
of health, paragraph 42, of which states: "While only States are parties to the Covenant and thus
ultimately accountable for compliance with it, all members of society - individuals, including health
professionals, families, local communities, intergovernmental and non-governmental organizations,
civil society organizations, as well as the private business sector - have responsibilities regarding
the realization of the right to health. States parties should therefore provide an environment which
facilitates the discharge of these responsibilities."
57. Article 12 of the Convention, as already emphasized (see paragraph 12 above), requires due
weight to be given to children's views in all matters affecting them, which plainly includes
implementation of "their" Convention.
58. The State needs to work closely with NGOs in the widest sense, while respecting their
autonomy; these include, for example, human rights NGOs, child- and youth-led organizations and
youth groups, parent and family groups, faith groups, academic institutions and professional
associations. NGOs played a crucial part in the drafting of the Convention and their involvement
in the process of implementation is vital.
59. The Committee welcomes the development of NGO coalitions and alliances committed to
promoting, protecting and monitoring children's human rights and urges Governments to give them
non-directive support and to develop positive formal as well as informal relationships with them.
The engagement of NGOs in the reporting process under the Convention, coming within the
definition of "competent bodies" under article 45 (a), has in many cases given a real impetus to the
process of implementation as well as reporting. The NGO Group for the Convention on the Rights
of the Child has a very welcome, strong and supportive impact on the reporting process and other
aspects of the Committee's work. The Committee underlines in its reporting guidelines that the
process of preparing a report "should encourage and facilitate popular participation and public
scrutiny of government policies". |15| The media can be valuable partners in the process of
implementation (see also paragraph 70).
J. International cooperation
60. Article 4 emphasizes that implementation of the Convention is a cooperative exercise for the
States of the world. This article and others in the Convention highlight the need for international
cooperation. |16| The Charter of the United Nations (Arts. 55 and 56) identifies the overall purposes
of international economic and social cooperation, and members pledge themselves under the Charter
"to take joint and separate action in cooperation with the Organization" to achieve these purposes.
In the United Nations Millennium Declaration and at other global meetings, including the United
Nations General Assembly special session on children, States have pledged themselves, in
particular, to international cooperation to eliminate poverty.
61. The Committee advises States parties that the Convention should form the framework for
international development assistance related directly or indirectly to children and that programmes
of donor States should be rights-based. The Committee urges States to meet internationally agreed
targets, including the United Nations target for international development assistance of 0.7 per cent
of gross domestic product. This goal was reiterated along with other targets in the Monterrey
Consensus, arising from the 2002 International Conference on Financing for Development. |17| The
Committee encourages States parties that receive international aid and assistance to allocate a
substantive part of that aid specifically to children. The Committee expects States parties to be able
to identify on a yearly basis the amount and proportion of international support earmarked for the
implementation of children's rights.
62. The Committee endorses the aims of the 20/20 initiative, to achieve universal access to basic
social services of good quality on a sustainable basis, as a shared responsibility of developing and
donor States. The Committee notes that international meetings held to review progress have
concluded that many States are going to have difficulty meeting fundamental economic and social
rights unless additional resources are allocated and efficiency in resource allocation is increased.
The Committee takes note of and encourages efforts being made to reduce poverty in the most
heavily indebted countries through the Poverty Reduction Strategy Paper (PRSP). As the central,
country-led strategy for achieving the millennium development goals, PRSPs must include a strong
focus on children's rights. The Committee urges Governments, donors and civil society to ensure
that children are a prominent priority in the development of PRSPs and sectorwide approaches to
development (SWAps). Both PRSPs and SWAps should reflect children's rights principles, with a
holistic, child-centred approach recognizing children as holders of rights and the incorporation of
development goals and objectives which are relevant to children.
63. The Committee encourages States to provide and to use, as appropriate, technical assistance in
the process of implementing the Convention. The United Nations Children's Fund (UNICEF), the
Office of the United Nations High Commissioner for Human Rights (OHCHR) and other United
Nations and United Nations-related agencies can provide technical assistance with many aspects of
implementation. States parties are encouraged to identify their interest in technical assistance in their
reports under the Convention.
64. In their promotion of international cooperation and technical assistance, all United Nations and
United Nations-related agencies should be guided by the Convention and should mainstream
children's rights throughout their activities. They should seek to ensure within their influence that
international cooperation is targeted at supporting States to fulfil their obligations under the
Convention. Similarly the World Bank Group, the International Monetary Fund and World Trade
Organization should ensure that their activities related to international cooperation and economic
development give primary consideration to the best interests of children and promote full
implementation of the Convention.
K. Independent human rights institutions
65. In its general comment No. 2 (2002) entitled "The role of independent national human rights
institutions in the protection and promotion of the rights of the child", the Committee notes that it
"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". Independent human rights institutions are complementary to
effective government structures for children; the essential element is independence: "The role of
national human rights institutions is to monitor independently the State's compliance and progress
towards implementation and to do all it can to ensure full respect for children's rights. While this
may require the institution to develop projects to enhance the promotion and protection of children's
rights, it should not lead to the Government delegating its monitoring obligations to the national
institution. It is essential that institutions remain entirely free to set their own agenda and determine
their own activities." |18| General comment No. 2 provides detailed guidance on the establishment and
operation of independent human rights institutions for children.
66. Individuals need to know what their rights are. Traditionally in most, if not all, societies children
have not been regarded as rights holders. So article 42 acquires a particular importance. If the adults
around children, their parents and other family members, teachers and carers do not understand the
implications of the Convention, and above all its confirmation of the equal status of children as
subjects of rights, it is most unlikely that the rights set out in the Convention will be realized for
many children.
67. The Committee proposes that States should develop a comprehensive strategy for disseminating
knowledge of the Convention throughout society. This should include information on those bodies -
governmental and independent - involved in implementation and monitoring and on how to contact
them. At the most basic level, the text of the Convention needs to be made widely available in all
languages and the Committee commends the collection of official and unofficial translations of the
Convention made by OHCHR. There needs to be a strategy for dissemination of the Convention
among illiterate people. UNICEF and NGOs in many States have developed child-friendly versions
of the Convention for children of various ages - a process the Committee welcomes and encourages;
these should also inform children of sources of help and advice.
68. Children need to acquire knowledge of their rights and the Committee places special emphasis
on incorporating learning about the Convention and human rights in general into the school
curriculum at all stages. The Committee's general comment No. 1 (2001) entitled "The aims of
education" (art. 29, para. 1), should be read in conjunction with this. Article 29, paragraph 1,
requires that the education of the child shall be directed to "... the development of respect for human
rights and fundamental freedoms ..." The general comment underlines: "Human rights education
should provide information on the content of human rights treaties. But children should also learn
about human rights by seeing human rights standards implemented in practice whether at home, in
school or within the community. Human rights education should be a comprehensive, lifelong
process and start with the reflection of human rights values in the daily life and experiences of
children." |19|
69. Similarly, learning about the Convention needs to be integrated into the initial and in-service
training of all those working with and for children (see paragraph 53 above). The Committee
reminds States parties of the recommendations it made following its meeting on general measures
of implementation held to commemorate the tenth anniversary of adoption of the Convention, in
which it recalled that "dissemination and awareness-raising about the rights of the child are most
effective when conceived as a process of social change, of interaction and dialogue rather than
lecturing. Raising awareness should involve all sectors of society, including children and young
people. Children, including adolescents, have the right to participate in raising awareness about their
rights to the maximum extent of their evolving capacities". |20|
"The Committee recommends that all efforts to provide training on the rights of the child
be practical, systematic and integrated into regular professional training in order to maximize its
impact and sustainability. Human rights training should use participatory methods, and equip
professionals with skills and attitudes that enable them to interact with children and young people
in a manner that respects their rights, dignity and self-respect." |21|
The media can play a crucial role in the dissemination of the Convention and knowledge and
understanding of it and the Committee encourages their voluntary engagement in the process, which
may be stimulated by Governments and by NGOs. |22|
70. If reporting under the Convention is to play the important part it should in the process of
implementation at the national level, it needs to be known about by adults and children throughout
the State party. The reporting process provides a unique form of international accountability for how
States treat children and their rights. But unless reports are disseminated and constructively debated
at the national level, the process is unlikely to have substantial impact on children's lives.
71. The Convention explicitly requires States to make their reports widely available to the public;
this should be done when they are submitted to the Committee. Reports should be made genuinely
accessible, for example through translation into all languages, into appropriate forms for children
and for people with disabilities and so on. The Internet may greatly aid dissemination, and
Governments and parliaments are strongly urged to place such reports on their web sites.
72. The Committee urges States to make all the other documentation of the examination of their
reports under the Convention widely available to promote constructive debate and inform the
process of implementation at all levels. In particular, the Committee's concluding observations
should be disseminated to the public including children and should be the subject of detailed debate
in parliament. Independent human rights institutions and NGOs can play a crucial role in helping
to ensure widespread debate. The summary records of the examination of government
representatives by the Committee aid understanding of the process and of the Committee's
requirements and should also be made available and discussed.
Notes:
1. The Committee reminds States parties that, for the purposes of the Convention, a child is defined
as "every human being below the age of 18 years unless, under the law applicable to the child,
majority is attained earlier" (art. 1). [Back]
2. In 1999, the Committee on the Rights of the Child held a two-day workshop to commemorate the
tenth anniversary of adoption of the Convention on the Rights of the Child by the United Nations
General Assembly. The workshop focused on general measures of implementation following which
the Committee adopted detailed conclusions and recommendations (see CRC/C/90, paragraph 291). [Back]
3. General guidelines regarding the form and content of initial reports to be submitted by States
parties under article 44, paragraph 1 (a) of the Convention, CRC/C/5, 15 October 1991; general
guidelines regarding the form and contents of periodic reports to be submitted under article 44,
paragraph 1 (b) of the Convention on the Rights of the Child, CRC/C/58, 20 November 1996. [Back]
4. Human Rights Committee, general comment No. 3 (thirteenth session, 1981), article 2:
Implementation at the national level; Committee on Economic, Social and Cultural Rights, general
comment No. 3 (fifth session, 1990), The nature of States parties' obligations (article 2, paragraph
1, of the Covenant); also general comment No. 9 (nineteenth session, 1998), The domestic
application of the Covenant, elaborating further on certain elements in general comment No. 3. A
compendium of the treaty bodies' general comments and recommendations is published regularly
by the Office of the High Commissioner for Human Rights (HRI/GEN/1 /Rev.6). [Back]
5. General comment No. 3, HRI/GEN/ 1/Rev.6, para. 11, p. 16. [Back]
6. Human Rights Committee, general comment No. 18 (1989), HRI/GEN/ 1/Rev.6, pp. 147 et seq. [Back]
7. General guidelines regarding the form and contents of periodic reports to be submitted under
article 44, paragraph 1 (b) of the Convention on the Rights of the Child, CRC/C/58, 20 November
1996, para. 11. [Back]
8. World Conference on Human Rights, Vienna, 14-25 June 1993, "Vienna Declaration and
Programme of Action", A/CONF.157/23. [Back]
9. World Summit for Children, "World Declaration on the Survival, Protection and Development
of Children and Plan of Action for Implementing the World Declaration on the Survival, Protection
and Development of Children in the 1990s", CF/WSC/1990/WS-001, United Nations, New York,
30 September 1990. [Back]
10. World Conference on Human Rights, Vienna, 14-25 June 1993, "Vienna Declaration and
Programme of Action", A/CONF.157/23. [Back]
11. A World Fit for Children, outcome document of the United Nations General Assembly special
session on children, 2002, para. 59. [Back]
12. Ibid., para. 61 (a). [Back]
13. Committee on the Rights of the Child, Report on its thirty-first session, September-October
2002, Day of General Discussion on "The private sector as service provider and its role in
implementing child rights", paras. 630-653. [Back]
14. General guidelines regarding the form and contents of periodic reports to be submitted under
article 44, paragraph 1 (b), of the Convention on the Rights of the Child, CRC/C/58, 20 November
1996, para. 20. [Back]
15. Ibid., para. 3. [Back]
16. The following articles of the Convention relate to international cooperation explicitly: articles
7 (2); 11 (2); 17 (b); 21 (e); 22 (2); 23 (4); 24 (4); 27 (4); 28 (3); 34 and 35. [Back]
17. Report of the International Conference on Financing for Development, Monterrey, Mexico, 18-22 March 2002 (A/CONF.198/11). [Back]
18. HRI/GEN/1/Rev.6, para. 25, p. 295. [Back]
19. Ibid., para. 15, p. 286. [Back]
20. See CRC/C/90, para. 291 (k). [Back]
21. Ibid., para. 291 (l). [Back]
22. The Committee held a day of general discussion on the theme "The child and the media" in
1996, adopting detailed recommendations (see CRC/C/57, paragraphs 242 et seq.). [Back]
Annex I
RATIFICATION OF OTHER KEY INTERNATIONAL HUMAN RIGHTS
INSTRUMENTS
As noted in paragraph 17 of the present general comment, the Committee on the Rights of the Child,
as part of its consideration of general measures of implementation, and in the light of the principles
of indivisibility and interdependence of human rights, consistently urges States parties, if they have
not already done so, to ratify the two Optional Protocols to the Convention on the Rights of the
Child (on the involvement of children in armed conflict and on the sale of children, child prostitution
and child pornography) and the six other major international human rights instruments. During its
dialogue with States parties the Committee often encourages them to consider ratifying other
relevant international instruments. A non-exhaustive list of these instruments is annexed here. The
Committee will update this from time to time.
- Optional Protocol to the International Covenant on Civil and Political Rights;
- Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at
the abolition of the death penalty;
- Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against
Women;
- Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment;
- Convention against Discrimination in Education;
- ILO Forced Labour Convention No. 29, 1930;
- ILO Convention No. 105 on Abolition of Forced Labour, 1957;
- ILO Convention No. 138 Concerning Minimum Age for Admission to Employment, 1973;
- ILO Convention No. 182 on Worst Forms of Child Labour, 1999;
- ILO Convention No. 183 on Maternity Protection, 2000;
- Convention relating to the Status of Refugees of 1951, as amended by the Protocol relating to the
Status of Refugees of 1967;
- Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution
of Others (1949);
- Slavery Convention (1926);
- Protocol amending the Slavery Convention (1953);
- The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and
Practices Similar to Slavery (1956);
- Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime of 2000;
- Geneva Convention relative to the Protection of Civilians in Time of War;
- Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection
of Victims of International Armed Conflicts (Protocol I);
- Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection
of Victims of Non-International Armed Conflicts (Protocol II);
- Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel
Mines and of Their Destruction;
- Statute of the International Criminal Court;
- Hague Convention on the Protection of Children and Cooperation in respect of Intercountry
Adoption;
- Hague Convention on the Civil Aspects of International Child Abduction;
- Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation
in respect of Parental Responsibility and Measures for the Protection of Children of 1996.
Thirty-ninth session (2005)
General comment No. 6:
Treatment of unaccompanied and separated children outside their country of origin
Contents:
I. OBJECTIVES OF THE GENERAL COMMENT
II. STRUCTURE AND SCOPE OF THE GENERAL COMMENT
III. DEFINITIONS
IV. APPLICABLE PRINCIPLES
V. RESPONSE TO GENERAL AND SPECIFIC PROTECTION NEEDS
VI. ACCESS TO THE ASYLUM PROCEDURE, LEGAL SAFEGUARDS AND RIGHTS IN
ASYLUM
VII. FAMILY REUNIFICATION, RETURN AND OTHER FORMS OF DURABLE
SOLUTIONS
VIII. TRAINING, DATA AND STATISTICS
I. OBJECTIVES OF THE GENERAL COMMENT
1. The objective of this general comment is to draw attention to the particularly vulnerable situation
of unaccompanied and separated children; to outline the multifaceted challenges faced by States and
other actors in ensuring that such children are able to access and enjoy their rights; and, to provide
guidance on the protection, care and proper treatment of unaccompanied and separated children
based on the entire legal framework provided by the Convention on the Rights of the Child (the
"Convention"), with particular reference to the principles of non-discrimination, the best interests
of the child and the right of the child to express his or her views freely.
2. The issuing of this general comment is motivated by the Committee's observation of an increasing
number of children in such situations. There are varied and numerous reasons for a child being
unaccompanied or separated, including: persecution of the child or the parents; international conflict
and civil war; trafficking in various contexts and forms, including sale by parents; and the search
for better economic opportunities.
3. The issuing of the general comment is further motivated by the Committee's identification of a
number of protection gaps in the treatment of such children, including the following: unaccompanied
and separated children face greater risks of, inter alia, sexual exploitation and abuse, military
recruitment, child labour (including for their foster families) and detention. They are often
discriminated against and denied access to food, shelter, housing, health services and education.
Unaccompanied and separated girls are at particular risk of gender-based violence, including
domestic violence. In some situations, such children have no access to proper and appropriate
identification, registration, age assessment, documentation, family tracing, guardianship systems or
legal advice. In many countries, unaccompanied and separated children are routinely denied entry
to or detained by border or immigration officials. In other cases they are admitted but are denied
access to asylum procedures or their asylum claims are not handled in an age and gender-sensitive
manner. Some countries prohibit separated children who are recognized as refugees from applying
for family reunification; others permit reunification but impose conditions so restrictive as to make
it virtually impossible to achieve. Many such children are granted only temporary status, which ends
when they turn 18, and there are few effective return programmes.
4. Concerns such as these have led the Committee to frequently raise issues related to
unaccompanied and separated children in its concluding observations. This general comment will
compile and consolidate standards developed, inter alia, through the Committee's monitoring efforts
and shall thereby provide clear guidance to States on the obligations deriving from the Convention
with regard to this particular vulnerable group of children. In applying these standards, States parties
must be cognizant of their evolutionary character and therefore recognize that their obligations may
develop beyond the standards articulated herein. These standards shall in no way impair further-reaching rights and benefits offered to unaccompanied and separated children under regional human
rights instruments or national systems, international and regional refugee law or international
humanitarian law.
II. STRUCTURE AND SCOPE OF THE GENERAL COMMENT
5. This general comment applies to unaccompanied and separated children who find themselves
outside their country of nationality (consistent with article 7) or, if stateless, outside their country
of habitual residence. The general comment applies to all such children irrespective of their
residence status and reasons for being abroad, and whether they are unaccompanied or separated.
However, it does not apply to children who have not crossed an international border, even though
the Committee acknowledges the many similar challenges related to internally displaced
unaccompanied and separated children, recognizes that much of the guidance offered below is also
valuable in relation to such children, and strongly encourages States to adopt relevant aspects of this
general comment in relation to the protection, care and treatment of unaccompanied and separated
children who are displaced within their own country.
6. While the mandate of the Committee is confined to its supervisory function in relation to the
Convention, its interpretation efforts must be conducted in the context of the entirety of applicable
international human rights norms and, therefore, the general comment adopts a holistic approach to
the question of the proper treatment of unaccompanied and separated children. This acknowledges
that all human rights, including those contained in the Convention, are indivisible and
interdependent. The importance of other international human rights instruments to the protection of
the child is also recognized in the preamble to the Convention.
III. DEFINITIONS
7. "Unaccompanied children" (also called unaccompanied minors) are children, as defined in article
1 of the Convention, who have been separated from both parents and other relatives and are not
being cared for by an adult who, by law or custom, is responsible for doing so.
8. "Separated children" are children, as defined in article 1 of the Convention, who have been
separated from both parents, or from their previous legal or customary primary caregiver, but not
necessarily from other relatives. These may, therefore, include children accompanied by other adult
family members.
9. A "child as defined in article 1 of the Convention", means "every human being below the age of
18 years unless under the law applicable to the child, majority is attained earlier". This means that
any instruments governing children in the territory of the State cannot define a child in any way that
deviates from the norms determining the age of majority in that State.
10. If not otherwise specified, the guidelines below apply equally to both unaccompanied and
separated children.
11. "Country of origin" is the country of nationality or, in the case of a stateless child, the country
of habitual residence.
IV. APPLICABLE PRINCIPLES
(a) Legal obligations of States parties for all unaccompanied or separated children in their
territory and measures for their implementation
12. State obligations under the Convention apply to each child within the State's territory and to all
children subject to its jurisdiction (art. 2). These State obligations cannot be arbitrarily and
unilaterally curtailed either by excluding zones or areas from a State's territory or by defining
particular zones or areas as not, or only partly, under the jurisdiction of the State. Moreover, State
obligations under the Convention apply within the borders of a State, including with respect to those
children who come under the State's jurisdiction while attempting to enter the country's territory.
Therefore, the enjoyment of rights stipulated in the Convention is not limited to children who are
citizens of a State party and must therefore, if not explicitly stated otherwise in the Convention, also
be available to all children - including asylum-seeking, refugee and migrant children - irrespective
of their nationality, immigration status or statelessness.
13. Obligations deriving from the Convention vis-a-vis unaccompanied and separated children apply
to all branches of government (executive, legislative and judicial). They include the obligation to
establish national legislation; administrative structures; and the necessary research, information, data
compilation and comprehensive training activities to support such measures. Such legal obligations
are both negative and positive in nature, requiring States not only to refrain from measures
infringing on such children's rights, but also to take measures to ensure the enjoyment of these rights
without discrimination. Such responsibilities are not only limited to the provision of protection and
assistance to children who are already unaccompanied or separated, but include measures to prevent
separation (including the implementation of safeguards in case of evacuation). The positive aspect
of these protection obligations also extends to requiring States to take all necessary measures to
identify children as being unaccompanied or separated at the earliest possible stage, including at the
border, to carry out tracing activities and, where possible and if in the child's best interest, to reunify
separated and unaccompanied children with their families as soon as possible.
14. As reaffirmed in its general comment No. 5 (2003) (paras. 18-23), States parties to the
Convention have to ensure that the provisions and principles of the treaty are fully reflected and
given legal effect in relevant domestic legislation. In case of any conflict in legislation,
predominance should always be given to the Convention, in light of article 27 of the Vienna
Convention on the Law of Treaties.
15. In order to ensure a conducive legal environment and in light of article 41 (b) of the Convention,
States parties are also encouraged to ratify other international instruments that address issues relating
to unaccompanied and separated children, including the two Optional Protocols to the Convention
on the Rights of the Child (on the involvement of children in armed conflict and on the sale of
children, child prostitution and child pornography), the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (the "CAT"), the Convention on the Elimination
of All Forms of Discrimination against Women, the Convention relating to the Status of Refugees
("the 1951 Refugee Convention") and the Protocol relating to the Status of Refugees, the Convention
on the Reduction of Statelessness, the Convention relating to the Status of Stateless Persons, the
Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption,
the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation
in Respect of Parental Responsibility and Measures for the Protection of Children, the four Geneva
Conventions of 12 August 1949, the Protocol Additional to the Geneva Conventions of 12 August
1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8
June 1977, the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1997. The
Committee also encourages States parties to the Convention and others concerned to take into
account the Office of the United Nations High Commissioner for Refugees (UNHCR)'s Guidelines
on Protection and Care (1994) and the Inter-Agency Guiding Principles on Unaccompanied and
Separated Children. |1|
16. In view of the absolute nature of obligations deriving from the Convention and their lex specialis
character, article 2, paragraph 3, of the International Covenant on Economic, Social and Cultural
Rights would not apply with regard to unaccompanied and separated children. In application of
article 4 of the Convention, the particular vulnerability of unaccompanied and separated children,
explicitly recognized in article 20 of the Convention, must be taken into account and will result in
making the assignment of available resources to such children a priority. States are expected to
accept and facilitate assistance offered within their respective mandates by the United Nations
Children's Fund (UNICEF), UNHCR and other agencies (article 22 (2) of the Convention) in order
to meet the needs of unaccompanied and separated children.
17. The Committee believes that reservations made by States parties to the Convention should not
in any way limit the rights of unaccompanied and separated children. As is systematically done with
States parties during the reporting process, the Committee recommends that, in the light of the
Vienna Declaration and Programme of Action adopted at the 1993 World Conference on Human
Rights in Vienna, |2| reservations limiting the rights of unaccompanied and separated children be
reviewed with the objective of withdrawal.
(b) Non-discrimination (art. 2)
18. The principle of non-discrimination, in all its facets, applies in respect to all dealings with
separated and unaccompanied children. In particular, it prohibits any discrimination on the basis of
the status of a child as being unaccompanied or separated, or as being a refugee, asylum-seeker or
migrant. This principle, when properly understood, does not prevent, but may indeed call for,
differentiation on the basis of different protection needs such as those deriving from age and/or
gender. Measures should also be taken to address possible misperceptions and stigmatization of
unaccompanied or separated children within the society. Policing or other measures concerning
unaccompanied or separated children relating to public order are only permissible where such
measures are based on the law; entail individual rather than collective assessment; comply with the
principle of proportionality; and represent the least intrusive option. In order not to violate the
prohibition on non-discrimination, such measures can, therefore, never be applied on a group or
collective basis.
(c) Best interests of the child as a primary consideration in the search for short and long-term
solutions (art. 3)
19. Article 3 (1) states that "[i]n 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". In the case of a displaced child, the
principle must be respected during all stages of the displacement cycle. At any of these stages, a best
interests determination must be documented in preparation of any decision fundamentally impacting
on the unaccompanied or separated child's life.
20. A determination of what is in the best interests of the child requires a clear and comprehensive
assessment of the child's identity, including her or his nationality, upbringing, ethnic, cultural and
linguistic background, particular vulnerabilities and protection needs. Consequently, allowing the
child access to the territory is a prerequisite to this initial assessment process. The assessment
process should be carried out in a friendly and safe atmosphere by qualified professionals who are
trained in age and gender-sensitive interviewing techniques.
21. Subsequent steps, such as the appointment of a competent guardian as expeditiously as possible,
serves as a key procedural safeguard to ensure respect for the best interests of an unaccompanied
or separated child. Therefore, such a child should only be referred to asylum or other procedures
after the appointment of a guardian. In cases where separated or unaccompanied children are
referred to asylum procedures or other administrative or judicial proceedings, they should also be
provided with a legal representative in addition to a guardian.
22. Respect for best interests also requires that, where competent authorities have placed an
unaccompanied or separated child "for the purposes of care, protection or treatment of his or her
physical or mental health", the State recognizes the right of that child to a "periodic review" of their
treatment and "all other circumstances relevant to his or her placement" (article 25 of the
Convention).
(d) Right to life, survival and development (art. 6)
23. The obligation of the State party under article 6 includes protection from violence and
exploitation, to the maximum extent possible, which would jeopardize a child's right to life, survival
and development. Separated and unaccompanied children are vulnerable to various risks that affect
their life, survival and development such as trafficking for purposes of sexual or other exploitation
or involvement in criminal activities which could result in harm to the child, or in extreme cases,
in death. Accordingly, article 6 necessitates vigilance by States parties in this regard, particularly
when organized crime may be involved. While the issue of trafficking of children is beyond the
scope of this general comment, the Committee notes that there is often a link between trafficking
and the situation of separated and unaccompanied children.
24. The Committee is of the view that practical measures should be taken at all levels to protect
children from the risks mentioned above. Such measures could include: priority procedures for child
victims of trafficking, the prompt appointment of guardians, the provision of information to children
about the risks they may encounter, and establishment of measures to provide follow-up to children
particularly at risk. These measures should be regularly evaluated to ensure their effectiveness.
(e) Right of the child to express his or her views freely (art. 12)
25. Pursuant to article 12 of the Convention, in determining the measures to be adopted with regard
to unaccompanied or separated children, the child's views and wishes should be elicited and taken
into account (art. 12 (1)). To allow for a well-informed expression of such views and wishes, it is
imperative that such children are provided with all relevant information concerning, for example,
their entitlements, services available including means of communication, the asylum process, family
tracing and the situation in their country of origin (arts. 13, 17 and 22 (2)). In guardianship, care and
accommodation arrangements, and legal representation, children's views should also be taken into
account. Such information must be provided in a manner that is appropriate to the maturity and level
of understanding of each child. As participation is dependent on reliable communication, where
necessary, interpreters should be made available at all stages of the procedure.
(f) Respect for the principle of non-refoulement
26. In affording proper treatment of unaccompanied or separated children, States must fully respect
non-refoulement obligations deriving from international human rights, humanitarian and refugee law
and, in particular, must respect obligations codified in article 33 of the 1951 Refugee Convention
and in article 3 of CAT.
27. Furthermore, in fulfilling obligations under the Convention, States shall not return a child to a
country where there are substantial grounds for believing that there is a real risk of irreparable harm
to the child, such as, but by no means limited to, those contemplated under articles 6 and 37 of the
Convention, either in the country to which removal is to be effected or in any country to which the
child may subsequently be removed. Such non-refoulement obligations apply irrespective of whether
serious violations of those rights guaranteed under the Convention originate from non-State actors
or whether such violations are directly intended or are the indirect consequence of action or inaction.
The assessment of the risk of such serious violations should be conducted in an age and gender-sensitive manner and should, for example, take into account the particularly serious consequences
for children of the insufficient provision of food or health services.
28. As underage recruitment and participation in hostilities entails a high risk of irreparable harm
involving fundamental human rights, including the right to life, State obligations deriving from
article 38 of the Convention, in conjunction with articles 3 and 4 of the Optional Protocol to the
Convention on the Rights of the Child on the involvement of children in armed conflict, entail
extraterritorial effects and States shall refrain from returning a child in any manner whatsoever to
the borders of a State where there is a real risk of underage recruitment, including recruitment not
only as a combatant but also to provide sexual services for the military or where there is a real risk
of direct or indirect participation in hostilities, either as a combatant or through carrying out other
military duties.
(g) Confidentiality
29. States parties must protect the confidentiality of information received in relation to an
unaccompanied or separated child, consistent with the obligation to protect the child's rights,
including the right to privacy (art. 16). This obligation applies in all settings, including health and
social welfare. Care must be taken that information sought and legitimately shared for one purpose
is not inappropriately used for that of another.
30. Confidentiality concerns also involve respect for the rights of others. For example, in obtaining,
sharing and preserving the information collected in respect of unaccompanied and separated
children, particular care must be taken in order not to endanger the well-being of persons still within
the child's country of origin, especially the child's family members. Furthermore, information
relating to the whereabouts of the child shall only be withheld vis-a-vis the parents where required
for the safety of the child or to otherwise secure the "best interests" of the child.
V. RESPONSE TO GENERAL AND SPECIFIC PROTECTION NEEDS
(a) Initial assessment and measures
31. The best interests of the child must also be a guiding principle for determining the priority of
protection needs and the chronology of measures to be applied in respect of unaccompanied and
separated children. This necessary initial assessment process, in particular, entails the following:
(i) Prioritized identification of a child as separated or unaccompanied immediately upon
arrival at ports of entry or as soon as their presence in the country becomes known to the authorities
(art. 8). Such identification measures include age assessment and should not only take into account
the physical appearance of the individual, but also his or her psychological maturity. Moreover, the
assessment must be conducted in a scientific, safe, child and gender-sensitive and fair manner,
avoiding any risk of violation of the physical integrity of the child; giving due respect to human
dignity; and, in the event of remaining uncertainty, should accord the individual the benefit of the
doubt such that if there is a possibility that the individual is a child, she or he should be treated as
such;
(ii) Prompt registration by means of an initial interview conducted in an age-appropriate and gender-sensitive manner, in a language the child understands, by professionally qualified persons to collect
biodata and social history to ascertain the identity of the child, including, wherever possible, identity
of both parents, other siblings, as well as the citizenship of the child, the siblings and the parents;
(iii) In continuation of the registration process, the recording of further information in order to meet
the specific needs of the child. This information should include:
- Reasons for being separated or unaccompanied;
- Assessment of particular vulnerabilities, including health, physical, psychosocial, material and
other protection needs, including those deriving from domestic violence, trafficking or trauma
- All available information to determine the potential existence of international protection needs,
including those: due to a "well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion" in the child's country of
origin (article 1 A (2), 1951 Refugee Convention); deriving from external aggression, occupation,
foreign domination or events seriously disturbing public order (article 1 (2), Convention Governing
the Specific Aspects of Refugee Problems in Africa); or relating to the indiscriminate effects of
generalized violence
(iv) Unaccompanied and separated children should be provided with their own personal identity
documentation as soon as possible;
(v) Tracing of family members to be commenced as early as possible (arts. 22 (2), 9 (3) and 10 (2)).
32. Any further actions relating to the residence and other status of the child in the territory of the
State should be based on the findings of an initial protection assessment carried out in accordance
with the above procedures. States should refrain from referring unaccompanied and separated
children into asylum procedures if their presence in the territory does not raise the question of
international refugee protection needs. This is without prejudice to the obligation of States to refer
unaccompanied or separated children to relevant procedures serving child protection, such as those
foreseen under child welfare legislation.
(b) Appointment of a guardian or adviser and legal representative (arts. 18 (2) and 20 (1))
33. States are required to create the underlying legal framework and to take necessary measures to
secure proper representation of an unaccompanied or separated child's best interests. Therefore,
States should appoint a guardian or adviser as soon as the unaccompanied or separated child is
identified and maintain such guardianship arrangements until the child has either reached the age
of majority or has permanently left the territory and/or jurisdiction of the State, in compliance with
the Convention and other international obligations. The guardian should be consulted and informed
regarding all actions taken in relation to the child. The guardian should have the authority to be
present in all planning and decision-making processes, including immigration and appeal hearings,
care arrangements and all efforts to search for a durable solution. The guardian or adviser should
have the necessary expertise in the field of childcare, so as to ensure that the interests of the child
are safeguarded and that the child's legal, social, health, psychological, material and educational
needs are appropriately covered by, inter alia, the guardian acting as a link between the child and
existing specialist agencies/individuals who provide the continuum of care required by the child.
Agencies or individuals whose interests could potentially be in conflict with those of the child's
should not be eligible for guardianship. For example, non-related adults whose primary relationship
to the child is that of an employer should be excluded from a guardianship role.
34. In the case of a separated child, guardianship should regularly be assigned to the accompanying
adult family member or non-primary family caretaker unless there is an indication that it would not
be in the best interests of the child to do so, for example, where the accompanying adult has abused
the child. In cases where a child is accompanied by a non-family adult or caretaker, suitability for
guardianship must be scrutinized more closely. If such a guardian is able and willing to provide day-to-day care, but unable to adequately represent the child's best interests in all spheres and at all
levels of the child's life, supplementary measures (such as the appointment of an adviser or legal
representative) must be secured.
35. Review mechanisms shall be introduced and implemented to monitor the quality of the exercise
of guardianship in order to ensure the best interests of the child are being represented throughout
the decision-making process and, in particular, to prevent abuse.
36. In cases where children are involved in asylum procedures or administrative or judicial
proceedings, they should, in addition to the appointment of a guardian, be provided with legal
representation.
37. At all times children should be informed of arrangements with respect to guardianship and legal
representation and their opinions should be taken into consideration.
38. In large-scale emergencies, where it will be difficult to establish guardianship arrangements on
an individual basis, the rights and best interests of separated children should be safeguarded and
promoted by States and organizations working on behalf of these children.
(c) Care and accommodation arrangements (arts. 20 and 22)
39. Unaccompanied or separated children are children temporarily or permanently deprived of their
family environment and, as such, are beneficiaries of States' obligations under article 20 of the
Convention and shall be entitled to special protection and assistance provided by the relevant State.
40. Mechanisms established under national law in order to ensure alternative care for such children
in accordance with article 22 of the Convention, shall also cover unaccompanied or separated
children outside their country of origin. A wide range of options for care and accommodation
arrangements exist and are explicitly acknowledged in article 20 (3) as follows: "... inter alia, foster
placement, kafalah of Islamic law, adoption or, if necessary, placement in suitable institutions for
the care of children". When selecting from these options, the particular vulnerabilities of such a
child, not only having lost connection with his or her family environment, but further finding him
or herself outside of his or her country of origin, as well as the child's age and gender, should be
taken into account. In particular, due regard ought to be taken of the desirability of continuity in a
child's upbringing and to the ethnic, religious, cultural and linguistic background as assessed in the
identification, registration and documentation process. Such care and accommodation arrangements
should comply with the following parameters:
- Children should not, as a general rule, be deprived of liberty;
- In order to ensure continuity of care and considering the best interests of the child, changes in
residence for unaccompanied and separated children should be limited to instances where such
change is in the best interests of the child;
- In accordance with the principle of family unity, siblings should be kept together;
- A child who has adult relatives arriving with him or her or already living in the country of asylum
should be allowed to stay with them unless such action would be contrary to the best interests of the
child. Given the particular vulnerabilities of the child, regular assessments should be conducted by
social welfare personnel;
- Irrespective of the care arrangements made for unaccompanied or separated children, regular
supervision and assessment ought to be maintained by qualified persons in order to ensure the child's
physical and psychosocial health, protection against domestic violence or exploitation, and access
to educational and vocational skills and opportunities;
- States and other organizations must take measures to ensure the effective protection of the rights
of separated or unaccompanied children living in child-headed households;
- In large-scale emergencies, interim care must be provided for the shortest time appropriate for
unaccompanied children. This interim care provides for their security and physical and emotional
care in a setting that encourages their general development;
- Children must be kept informed of the care arrangements being made for them, and their opinions
must be taken into consideration.
(d) Full access to education (arts. 28, 29 (1) (c), 30 and 32)
41. States should ensure that access to education is maintained during all phases of the displacement
cycle. Every unaccompanied and separated child, irrespective of status, shall have full access to
education in the country that they have entered in line with articles 28, 29 (1) (c), 30 and 32 of the
Convention and the general principles developed by the Committee. Such access should be granted
without discrimination and in particular, separated and unaccompanied girls shall have equal access
to formal and informal education, including vocational training at all levels. Access to quality
education should also be ensured for children with special needs, in particular children with
disabilities.
42. The unaccompanied or separated child should be registered with appropriate school authorities
as soon as possible and get assistance in maximizing learning opportunities. All unaccompanied and
separated children have the right to maintain their cultural identity and values, including the
maintenance and development of their native language. All adolescents should be allowed to enrol
in vocational/professional training or education, and early learning programmes should be made
available to young children. States should ensure that unaccompanied or separated children are
provided with school certificates or other documentation indicating their level of education, in
particular in preparation of relocation, resettlement or return.
43. States shall, in particular where government capacity is limited, accept and facilitate the
assistance offered by UNICEF, the United Nations Educational, Scientific and Cultural Organization
(UNESCO), UNHCR and other United Nations agencies within their respective mandates, as well
as, where appropriate, other competent intergovernmental organizations or non-governmental
organizations (art. 22 (2)) in order to meet the educational needs of unaccompanied and separated
children.
(e) Right to an adequate standard of living (art. 27)
44. States should ensure that separated and unaccompanied children have a standard of living
adequate for their physical, mental, spiritual and moral development. As provided in article 27 (2)
of the Convention, States shall provide material assistance and support programmes, particularly
with regard to nutrition, clothing and housing.
45. States shall, in particular where government capacity is limited, accept and facilitate the
assistance offered by UNICEF, UNESCO, UNHCR and other United Nations agencies within their
respective mandates, as well as, where appropriate, other competent intergovernmental organizations
or non-governmental organizations (art. 22 (2)) in order to secure an adequate standard of living for
unaccompanied and separated children.
(f) Right to enjoy the highest attainable standard of health and facilities for the treatment of
illness and rehabilitation of health (arts. 23, 24 and 39)
46. When implementing the right to enjoy the highest attainable standard of health and facilities for
the treatment of illness and rehabilitation of health under article 24 of the Convention, States are
obligated to ensure that unaccompanied and separated children have the same access to health care
as children who are ... nationals ... .
47. In ensuring their access, States must assess and address the particular plight and vulnerabilities
of such children. They should, in particular, take into account the fact that unaccompanied children
have undergone separation from family members and have also, to varying degrees, experienced
loss, trauma, disruption and violence. Many such children, in particular those who are refugees, have
further experienced pervasive violence and the stress associated with a country afflicted by war. This
may have created deep-rooted feelings of helplessness and undermined a child's trust in others.
Moreover, girls are particularly susceptible to marginalization, poverty and suffering during armed
conflict, and many may have experienced gender-based violence in the context of armed conflict.
The profound trauma experienced by many affected children calls for special sensitivity and
attention in their care and rehabilitation.
48. The obligation under article 39 of the Convention sets out the duty of States to provide
rehabilitation services to children who have been victims of any form of abuse, neglect, exploitation,
torture, cruel, inhuman and degrading treatment or armed conflicts. In order to facilitate such
recovery and reintegration, culturally appropriate and gender-sensitive mental health care should
be developed and qualified psychosocial counselling provided.
49. States shall, in particular where government capacity is limited, accept and facilitate assistance
offered by UNICEF, the World Health Organization (WHO), United Nations Joint Programme on
HIV/AIDS (UNAIDS), UNHCR and other agencies (art. 22 (2)) within their respective mandates,
as well as, where appropriate, other competent intergovernmental organizations or non-governmental organizations in order to meet the health and health-care needs of unaccompanied and
separated children.
(g) Prevention of trafficking and of sexual and other forms of exploitation, abuse and violence
(arts. 34, 35 and 36)
50. Unaccompanied or separated children in a country outside their country of origin are particularly
vulnerable to exploitation and abuse. Girls are at particular risk of being trafficked, including for
purposes of sexual exploitation.
51. Articles 34 to 36 of the Convention must be read in conjunction with special protection and
assistance obligations to be provided according to article 20 of the Convention, in order to ensure
that unaccompanied and separated children are shielded from trafficking, and from sexual and other
forms of exploitation, abuse and violence.
52. Trafficking of such a child, or "re-trafficking" in cases where a child was already a victim of
trafficking, is one of many dangers faced by unaccompanied or separated children. Trafficking in
children is a threat to the fulfilment of their right to life, survival and development (art. 6). In
accordance with article 35 of the Convention, States parties should take appropriate measures to
prevent such trafficking. Necessary measures include identifying unaccompanied and separated
children; regularly inquiring as to their whereabouts; and conducting information campaigns that
are age-appropriate, gender-sensitive and in a language and medium that is understandable to the
child. Adequate legislation should also be passed and effective mechanisms of enforcement be
established with respect to labour regulations and border crossing.
53. Risks are also great for a child who has already been a victim of trafficking, resulting in the
status of being unaccompanied or separated. Such children should not be penalized and should
receive assistance as victims of a serious human rights violation. Some trafficked children may be
eligible for refugee status under the 1951 Convention, and States should ensure that separated and
unaccompanied trafficked children who wish to seek asylum or in relation to whom there is
otherwise indication that international protection needs exist, have access to asylum procedures.
Children who are at risk of being re-trafficked should not be returned to their country of origin
unless it is in their best interests and appropriate measures for their protection have been taken.
States should consider complementary forms of protection for trafficked children when return is not
in their best interests.
(h) Prevention of military recruitment and protection against effects of war (arts. 38 and 39)
Prevention of recruitment
54. State obligations deriving from article 38 of the Convention and from articles 3 and 4 of the
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in
armed conflict also apply to unaccompanied and separated children. A State must take all necessary
measures to prevent recruitment or use of such children by any party to a conflict. This also applies
to former child soldiers who have defected from their units and who require protection against re-recruitment.
Care arrangements
55. Care arrangements for unaccompanied and separated children shall be made in a manner which
prevents their recruitment, re-recruitment or use by any party to a conflict. Guardianships should
not be given to individuals or organizations who are directly or indirectly involved in a conflict.
Former child soldiers
56. Child soldiers should be considered primarily as victims of armed conflict. Former child
soldiers, who often find themselves unaccompanied or separated at the cessation of the conflict or
following defection, shall be given all the necessary support services to enable reintegration into
normal life, including necessary psychosocial counselling. Such children shall be identified and
demobilized on a priority basis during any identification and separation operation. Child soldiers,
in particular, those who are unaccompanied or separated, should not normally be interned, but rather,
benefit from special protection and assistance measures, in particular as regards their demobilization
and rehabilitation. Particular efforts must be made to provide support and facilitate the reintegration
of girls who have been associated with the military, either as combatants or in any other capacity.
57. If, under certain circumstances, exceptional internment of a child soldier over the age of 15 years
is unavoidable and in compliance with international human rights and humanitarian law, for
example, where she or he poses a serious security threat, the conditions of such internment should
be in conformity with international standards, including article 37 of the Convention and those
pertaining to juvenile justice, and should not preclude any tracing efforts and priority participation
in rehabilitation programmes.
Non-refoulement
58. As under-age recruitment and participation in hostilities entails a high risk of irreparable harm
involving fundamental human rights, including the right to life, State obligations deriving from
article 38 of the Convention, in conjunction with articles 3 and 4 of the Optional Protocol to the
Convention on the Rights of the Child on the involvement of children in armed conflict, entail
extraterritorial effects and States shall refrain from returning a child in any manner whatsoever to
the borders of a State where there is a real risk of under-age recruitment or participation, directly
or indirectly, in hostilities.
Child-specific forms and manifestations of persecution |3|
59. Reminding States of the need for age and gender-sensitive asylum procedures and an age and
gender-sensitive interpretation of the refugee definition, the Committee highlights that under-age
recruitment (including of girls for sexual services or forced marriage with the military) and direct
or indirect participation in hostilities constitutes a serious human rights violation and thereby
persecution, and should lead to the granting of refugee status where the well-founded fear of such
recruitment or participation in hostilities is based on "reasons of race, religion, nationality,
membership of a particular social group or political opinion" (article 1A (2), 1951 Refugee
Convention).
Rehabilitation and recovery
60. States shall develop, where needed, in cooperation with international agencies and NGOs, a
comprehensive age-appropriate and gender-sensitive system of psychological support and assistance
for unaccompanied and separated children affected by armed conflict.
(i) Prevention of deprivation of liberty and treatment in cases thereof
61. In application of article 37 of the Convention and the principle of the best interests of the child,
unaccompanied or separated children should not, as a general rule, be detained. Detention cannot
be justified solely on the basis of the child being unaccompanied or separated, or on their migratory
or residence status, or lack thereof. Where detention is exceptionally justified for other reasons, it
shall be conducted in accordance with article 37 (b) of the Convention that requires detention to
conform to the law of the relevant country and only to be used as a measure of last resort and for the
shortest appropriate period of time. In consequence, all efforts, including acceleration of relevant
processes, should be made to allow for the immediate release of unaccompanied or separated
children from detention and their placement in other forms of appropriate accommodation.
62. In addition to national requirements, international obligations constitute part of the law
governing detention. With regard to asylum-seeking, unaccompanied and separated children, States
must, in particular, respect their obligations deriving from article 31 (1) of the 1951 Refugee
Convention. States should further take into account that illegal entry into or stay in a country by an
unaccompanied or separated child may also be justified according to general principles of law,
where such entry or stay is the only way of preventing a violation of the fundamental human rights
of the child. More generally, in developing policies on unaccompanied or separated children,
including those who are victims of trafficking and exploitation, States should ensure that such
children are not criminalized solely for reasons of illegal entry or presence in the country.
63. In the exceptional case of detention, conditions of detention must be governed by the best
interests of the child and pay full respect to article 37 (a) and (c) of the Convention and other
international obligations. Special arrangements must be made for living quarters that are suitable
for children and that separate them from adults, unless it is considered in the child's best interests
not to do so. Indeed, the underlying approach to such a programme should be "care" and not
"detention". Facilities should not be located in isolated areas where culturally appropriate
community resources and access to legal aid are unavailable. Children should have the opportunity
to make regular contact and receive visits from friends, relatives, religious, social and legal counsel
and their guardian. They should also be provided with the opportunity to receive all basic necessities
as well as appropriate medical treatment and psychological counselling where necessary. During
their period in detention, children have the right to education which ought, ideally, to take place
outside the detention premises in order to facilitate the continuance of their education upon release.
They also have the right to recreation and play as provided for in article 31 of the Convention. In
order to effectively secure the rights provided by article 37 (d) of the Convention, unaccompanied
or separated children deprived of their liberty shall be provided with prompt and free access to legal
and other appropriate assistance, including the assignment of a legal representative.
VI. ACCESS TO THE ASYLUM PROCEDURE, LEGAL SAFEGUARDS AND RIGHTS
IN ASYLUM
(a) General
64. The obligation stemming from article 22 of the Convention to take "appropriate measures" to
ensure that a child, whether unaccompanied or accompanied, who is seeking refugee status receives
appropriate protection entails, inter alia, the responsibility to set up a functioning asylum system
and, in particular, to enact legislation addressing the particular treatment of unaccompanied and
separated children and to build capacities necessary to realize this treatment in accordance with
applicable rights codified in the Convention and in other international human rights, refugee
protection or humanitarian instruments to which the State is a party. States facing resource
constraints in staging such capacity-building efforts are strongly encouraged to seek international
assistance, including that provided by UNHCR.
65. Taking into account the complementary nature of the obligations under article 22 and those
deriving from international refugee law, as well as the desirability of consolidated standards, States
should apply international standards relating to refugees as they progressively evolve when
implementing article 22 of the Convention.
(b) Access to asylum procedures, regardless of age
66. Asylum-seeking children, including those who are unaccompanied or separated, shall enjoy
access to asylum procedures and other complementary mechanisms providing international
protection, irrespective of their age. In the case that facts become known during the identification
and registration process which indicate that the child may have a well-founded fear or, even if
unable to explicitly articulate a concrete fear, the child may objectively be at risk of persecution for
reasons of race, religion, nationality, membership of a particular social group or political opinion,
or otherwise be in need of international protection, such a child should be referred to the asylum
procedure and/or, where relevant, to mechanisms providing complementary protection under
international and domestic law.
67. Unaccompanied or separated children for whom there is no indication of being in need of
international protection should not automatically, or otherwise, be referred to asylum procedures,
but shall be protected pursuant to other relevant child protection mechanisms such as those provided
under youth welfare legislation.
(c) Procedural safeguards and support measures (art. 3 (3))
68. Appropriate measures required under article 22 (1) of the Convention must take into account the
particular vulnerabilities of unaccompanied and separated children and the national legal framework
and conditions. Such measures should be guided by the considerations set out below.
69. An asylum-seeking child should be represented by an adult who is familiar with the child's
background and who is competent and able to represent his or her best interests (see section V (b),
"Appointment of a guardian or adviser or legal representative"). The unaccompanied or separated
child should also, in all cases, be given access, free of charge, to a qualified legal representative,
including where the application for refugee status is processed under the normal procedures for
adults.
70. Refugee status applications filed by unaccompanied and separated children shall be given
priority and every effort should be made to render a decision promptly and fairly.
71. Minimum procedural guarantees should include that the application will be determined by a
competent authority fully qualified in asylum and refugee matters. Where the age and maturity of
the child permits, the opportunity for a personal interview with a qualified official should be granted
before any final decision is made. Wherever the child is unable to communicate directly with the
qualified official in a common language, the assistance of a qualified interpreter should be sought.
Moreover, the child should be given the "benefit of the doubt", should there be credibility concerns
relating to his or her story as well as a possibility to appeal for a formal review of the decision.
72. The interviews should be conducted by representatives of the refugee determination authority
who will take into account the special situation of unaccompanied children in order to carry out the
refugee status assessment and apply an understanding of the history, culture and background of the
child. The assessment process should comprise a case-by-case examination of the unique
combination of factors presented by each child, including the child's personal, family and cultural
background. The guardian and the legal representative should be present during all interviews.
73. In cases of large-scale refugee movements where individual refugee status determination is not
possible, States may grant refugee status to all members of a group. In such circumstances, all
unaccompanied or separated children are entitled to be granted the same status as other members
of the particular group.
(d) Child-sensitive assessment of protection needs, taking into account persecution of a
child-specific nature
74. When assessing refugee claims of unaccompanied or separated children, States shall take into
account the development of, and formative relationship between, international human rights and
refugee law, including positions developed by UNHCR in exercising its supervisory functions under
the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be
interpreted in an age and gender-sensitive manner, taking into account the particular motives for,
and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age
recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female
genital mutilation, are some of the child-specific forms and manifestations of persecution which may
justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention
grounds. States should, therefore, give utmost attention to such child-specific forms and
manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.
75. Staff involved in status-determination procedures of children, in particular those who are
unaccompanied or separated, should receive training on adopting an application of international and
national refugee law that is child, cultural, and gender-sensitive. To properly assess asylum claims
of children, information on the situation of children, including those belonging to minorities or
marginalized groups, should be included in government efforts to collect country-of-origin
information.
(e) Full enjoyment of all international refugee and human rights by children granted refugee
status (art. 22)
76. Unaccompanied or separated children recognized as refugees and granted asylum do not only
enjoy rights under the 1951 Refugee Convention, but are also entitled to the fullest extent to the
enjoyment of all human rights granted to children in the territory or subject to the jurisdiction of the
State, including those rights which require a lawful stay in the territory.
(f) Children to benefit from complementary forms of protection
77. In the case that the requirements for granting refugee status under the 1951 Refugee Convention
are not met, unaccompanied and separated children shall benefit from available forms of
complementary protection to the extent determined by their protection needs. The application of
such complementary forms of protection does not obviate States' obligations to address the particular
protection needs of the unaccompanied and separated child. Therefore, children granted
complementary forms of protection are entitled, to the fullest extent, to the enjoyment of all human
rights granted to children in the territory or subject to the jurisdiction of the State, including those
rights which require a lawful stay in the territory.
78. In line with the generally applicable principles and, in particular, those relating to the
responsibilities of States with regard to unaccompanied or separated children finding themselves in
their territory, children who are neither granted refugee status nor benefiting from complementary
forms of protection, will still enjoy protection under all norms of the Convention as long as they
remain de facto within the States' territories and/or subject to its jurisdiction.
VII. FAMILY REUNIFICATION, RETURN AND OTHER FORMS OF DURABLE
SOLUTIONS
(a) General
79. The ultimate aim in addressing the fate of unaccompanied or separated children is to identify a
durable solution that addresses all their protection needs, takes into account the child's view and,
wherever possible, leads to overcoming the situation of a child being unaccompanied or separated.
Efforts to find durable solutions for unaccompanied or separated children should be initiated and
implemented without undue delay and, wherever possible, immediately upon the assessment of a
child being unaccompanied or separated. Following a rights-based approach, the search for a durable
solution commences with analysing the possibility of family reunification.
80. Tracing is an essential component of any search for a durable solution and should be prioritized
except where the act of tracing, or the way in which tracing is conducted, would be contrary to the
best interests of the child or jeopardize fundamental rights of those being traced. In any case, in
conducting tracing activities, no reference should be made to the status of the child as an asylum-seeker or refugee. Subject to all of these conditions, such tracing efforts should also be continued
during the asylum procedure. For all children who remain in the territory of the host State, whether
on the basis of asylum, complementary forms of protection or due to other legal or factual obstacles
to removal, a durable solution must be sought.
(b) Family reunification
81. In order to pay full respect to the obligation of States under article 9 of the Convention to ensure
that a child shall not be separated from his or her parents against their will, all efforts should be
made to return an unaccompanied or separated child to his or her parents except where further
separation is necessary for the best interests of the child, taking full account of the right of the child
to express his or her views (art. 12) (see also section IV (e), "Right of the child to express his or her
views freely"). While the considerations explicitly listed in article 9, paragraph 1, sentence 2,
namely, cases involving abuse or neglect of the child by the parents, may prohibit reunification at
any location, other best-interests considerations can provide an obstacle to reunification at specific
locations only.
82. Family reunification in the country of origin is not in the best interests of the child and should
therefore not be pursued where there is a "reasonable risk" that such a return would lead to the
violation of fundamental human rights of the child. Such risk is indisputably documented in the
granting of refugee status or in a decision of the competent authorities on the applicability of non-refoulement obligations (including those deriving from article 3 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment and articles 6 and 7 of the
International Covenant on Civil and Political Rights). Accordingly, the granting of refugee status
constitutes a legally binding obstacle to return to the country of origin and, consequently, to family
reunification therein. Where the circumstances in the country of origin contain lower level risks and
there is concern, for example, of the child being affected by the indiscriminate effects of generalized
violence, such risks must be given full attention and balanced against other rights-based
considerations, including the consequences of further separation. In this context, it must be recalled
that the survival of the child is of paramount importance and a precondition for the enjoyment of any
other rights.
83. Whenever family reunification in the country of origin is not possible, irrespective of whether
this is due to legal obstacles to return or whether the best-interests-based balancing test has decided
against return, the obligations under article 9 and 10 of the Convention come into effect and should
govern the host country's decisions on family reunification therein. In this context, States parties are
particularly reminded that "applications by a child or his or her parents to enter or leave a State party
for the purpose of family reunification shall be dealt with by States parties in a positive, humane and
expeditious manner" and "shall entail no adverse consequences for the applicants and for the
members of their family" (art. 10 (1)). Countries of origin must respect "the right of the child and
his or her parents to leave any country, including their own, and to enter their own country" (art. 10
(2)).
(c) Return to the country of origin
84. Return to the country of origin is not an option if it would lead to a "reasonable risk" that such
return would result in the violation of fundamental human rights of the child, and in particular, if
the principle of non-refoulement applies. Return to the country of origin shall in principle only be
arranged if such return is in the best interests of the child. Such a determination shall, inter alia, take
into account:
- The safety, security and other conditions, including socio-economic conditions,
awaiting the child upon return, including through home study, where appropriate, conducted by
social network organizations;
- The availability of care arrangements for that particular child;
- The views of the child expressed in exercise of his or her right to do so under article 12 and those
of the caretakers;
- The child's level of integration in the host country and the duration of absence from the home
country;
- The child's right "to preserve his or her identity, including nationality, name and family relations"
(art. 8);
- The "desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural
and linguistic background" (art. 20).
85. In the absence of the availability of care provided by parents or members of the extended family,
return to the country of origin should, in principle, not take place without advance secure and
concrete arrangements of care and custodial responsibilities upon return to the country of origin.
86. Exceptionally, a return to the home country may be arranged, after careful balancing of the
child's best interests and other considerations, if the latter are rights-based and override best interests
of the child. Such may be the case in situations in which the child constitutes a serious risk to the
security of the State or to the society. Non-rights-based arguments such as those relating to general
migration control, cannot override best interests considerations.
87. In all cases return measures must be conducted in a safe, child-appropriate and gender-sensitive
manner.
88. Countries of origin are also reminded in this context of their obligations pursuant to article 10
of the Convention and, in particular, to respect "the right of the child and his or her parents to leave
any country, including their own, and to enter their own country".
(d) Local integration
89. Local integration is the primary option if return to the country of origin is impossible on either
legal or factual grounds. Local integration must be based on a secure legal status (including
residence status) and be governed by the Convention rights that are fully applicable to all children
who remain in the country, irrespective of whether this is due to their recognition as a refugee, other
legal obstacles to return, or whether the best-interests-based balancing test has decided against
return.
90. Once it has been determined that a separated or unaccompanied child will remain in the
community, the relevant authorities should conduct an assessment of the child's situation and then,
in consultation with the child and his or her guardian, determine the appropriate long-term
arrangements within the local community and other necessary measures to facilitate such
integration. The long-term placement should be decided in the best interests of the child and, at this
stage, institutional care should, wherever possible, serve only as a last resort. The separated or
unaccompanied child should have the same access to rights (including to education, training,
employment and health care) as enjoyed by national children. In ensuring that these rights are fully
enjoyed by the unaccompanied or separated child, the host country may need to pay special attention
to the extra measures required to address the child's vulnerable status, including, for example,
through extra language training.
(e) Intercountry adoption (art. 21)
91. States must have full respect for the preconditions provided under article 21 of the Convention
as well as other relevant international instruments, including in particular the Hague Convention on
Protection of Children and Cooperation in Respect of Inter-Country Adoption and its 1994
Recommendation Concerning the Application to Refugee and other Internationally Displaced
Children when considering the adoption of unaccompanied and separated children. States should,
in particular, observe the following:
- Adoption of unaccompanied or separated children should only be considered once it has
been established that the child is in a position to be adopted. In practice, this means, inter alia, that
efforts with regard to tracing and family reunification have failed, or that the parents have consented
to the adoption. The consent of parents and the consent of other persons, institutions and authorities
that are necessary for adoption must be free and informed. This supposes notably that such consent
has not been induced by payment or compensation of any kind and has not been withdrawn;
- Unaccompanied or separated children must not be adopted in haste at the height of an emergency;
- Any adoption must be determined as being in the child's best interests and carried out in keeping
with applicable national, international and customary law;
- The views of the child, depending upon his/her age and degree of maturity, should be sought and
taken into account in all adoption procedures. This requirement implies that he/she has been
counselled and duly informed of the consequences of adoption and of his/her consent to adoption,
where such consent is required. Such consent must have been given freely and not induced by
payment or compensation of any kind;
- Priority must be given to adoption by relatives in their country of residence. Where this is not an
option, preference will be given to adoption within the community from which the child came or at
least within his or her own culture;
- Adoption should not be considered:
- Where there is reasonable hope of successful tracing and family reunification is in the child's best
interests;
- If it is contrary to the expressed wishes of the child or the parents;
- Unless a reasonable time has passed during which all feasible steps to trace the parents or other
surviving family members has been carried out. This period of time may vary with circumstances,
in particular, those relating to the ability to conduct proper tracing; however, the process of tracing
must be completed within a reasonable period of time;
- Adoption in a country of asylum should not be taken up when there is the possibility of voluntary
repatriation under conditions of safety and dignity in the near future.
(f) Resettlement in a third country
92. Resettlement to a third country may offer a durable solution for an accompanied or separated
child who cannot return to the country of origin and for whom no durable solution can be envisaged
in the host country. The decision to resettle an unaccompanied or separated child must be based on
an updated, comprehensive and thorough best-interests assessment, taking into account, in
particular, ongoing international and other protection needs. Resettlement is particularly called for
if such is the only means to effectively and sustainably protect a child against refoulement or against
persecution or other serious human rights violations in the country of stay. Resettlement is also in
the best interests of the unaccompanied or separated child if it serves family reunification in the
resettlement country.
93. The best-interests assessment determination, prior to a decision to resettle, needs also to take into
account other factors such as: the envisaged duration of legal or other obstacles to a child's return
to his or her home country; the child's right to preserve his or her identity, including nationality and
name (art. 8); the child's age, sex, emotional state, educational and family background;
continuity/discontinuity of care in the host country; the desirability of continuity in a child's
upbringing and to the child's ethnic, religious, cultural and linguistic background (art. 20); the right
of the child to preserve his or her family relations (art. 8) and related short, medium and long-term
possibilities of family reunion either in the home, host, or resettlement country. Unaccompanied or
separated children should never be resettled to a third country if this would undermine or seriously
hamper future reunion with their family.
94. States are encouraged to provide resettlement opportunities in order to meet all the resettlement
needs related to unaccompanied and separated children.
VIII. TRAINING, DATA AND STATISTICS
(a) Training of personnel dealing with unaccompanied and separated children
95. Particular attention should be paid to the training of officials working with separated and
unaccompanied children and dealing with their cases. Specialized training is equally important for
legal representatives, guardians, interpreters and others dealing with separated and unaccompanied
children.
96. Such training should be specifically tailored to the needs and rights of the groups concerned.
Nevertheless, certain key elements should be included in all training programmes, including:
- Principles and provisions of the Convention;
- Knowledge of the country of origin of separated and unaccompanied children;
- Appropriate interview techniques;
- Child development and psychology;
- Cultural sensitivity and intercultural communication.
97. Initial training programmes should also be followed up regularly, including through on-the-job
learning and professional networks.
(b) Data and statistics on separated and unaccompanied children
98. It is the experience of the Committee that data and statistics collected with regard to
unaccompanied and separated children tends to be limited to the number of arrivals and/or number
of requests for asylum. This data is insufficient for a detailed analysis of the implementation of the
rights of such children. Furthermore, data and statistics are often collected by a variety of different
ministries or agencies, which can impede further analysis and presents potential concerns with
regard to confidentiality and a child's right to privacy.
99. Accordingly, the development of a detailed and integrated system of data collection on
unaccompanied and separated children is a prerequisite for the development of effective policies for
the implementation of the rights of such children.
100. Data collected within such a system should ideally include but not be limited to: basic
biographical data on each child (including age, sex, country of origin and nationality, ethnic group);
total number of unaccompanied and separated children attempting to enter the country and the
number that have been refused entry; number of requests for asylum; number of legal representatives
and guardians assigned to such children; legal and immigration status (i.e. asylum-seeker, refugee,
temporary resident permit); living arrangements (i.e. in institutions, with families or living
independently); enrolment in school or vocational training; family reunifications; and, numbers
returned to their country of origin. In addition, States parties should consider collecting qualitative
data that would allow them to analyse issues that remain insufficiently addressed, such as for
instance, disappearances of unaccompanied and separated children and the impact of trafficking.
Notes:
1. These Guiding Principles are jointly endorsed by the International Committee of the Red Cross,
the International Rescue Committee, Save the Children/UK, UNICEF, UNHCR, and World Vision
International. They are intended to guide the work of all members of the Inter-Agency Standing
Committee with respect to unaccompanied and separated children. [Back]
2. Vienna Declaration and Programme of Action (A/CONF.157/23) adopted by the World
Conference on Human Rights, held in Vienna, 14-25 June 1993. [Back]
3. On child-specific forms and manifestations of persecution more generally, see section VI (d)
below "Child sensitive assessment of protection needs, taking into account persecution of a child-specific nature". [Back]
Fortieth session (2006)
General comment No. 7:
Implementing child rights in early childhood
I. INTRODUCTION
1. This general comment arises out of the Committee's experiences of reviewing States parties'
reports. In many cases, very little information has been offered about early childhood, with
comments limited mainly to child mortality, birth registration and health care. The Committee felt
the need for a discussion on the broader implications of the Convention on the Rights of the Child
for young children. Accordingly, in 2004, the Committee devoted its day of general discussion to
the theme "Implementing child rights in early childhood". This resulted in a set of recommendations
(see CRC/C/143, sect. VII) as well as the decision to prepare a general comment on this important
topic. Through this general comment, the Committee wishes to encourage recognition that young
children are holders of all rights enshrined in the Convention and that early childhood is a critical
period for the realization of these rights. The Committee's working definition of "early childhood"
is all young children: at birth and throughout infancy; during the preschool years; as well as during
the transition to school (see paragraph 4 below).
II. OBJECTIVES OF THE GENERAL COMMENT
2. The objectives of the general comment are:
(a) To strengthen understanding of the human rights of all young children and to draw
States parties' attention to their obligations towards young children;
(b) To comment on the specific features of early childhood that impact on the realization of rights;
(c) To encourage recognition of young children as social actors from the beginning of life, with
particular interests, capacities and vulnerabilities, and of requirements for protection, guidance and
support in the exercise of their rights;
(d) To draw attention to diversities within early childhood that need to be taken into account when
implementing the Convention, including diversities in young children's circumstances, in the quality
of their experiences and in the influences shaping their development;
(e) To point to variations in cultural expectations and treatment of children, including local customs
and practices that should be respected, except where they contravene the rights of the child;
(f) To emphasize the vulnerability of young children to poverty, discrimination, family breakdown
and multiple other adversities that violate their rights and undermine their well-being;
(g) To contribute to the realization of rights for all young children through formulation and
promotion of comprehensive policies, laws, programmes, practices, professional training and
research specifically focused on rights in early childhood.
III. HUMAN RIGHTS AND YOUNG CHILDREN
3. Young children are rights holders. The Convention on the Rights of the Child defines a child as
"every human being below the age of eighteen years unless under the law applicable to the child,
majority is attained earlier" (art. 1). Consequently, young children are holders of all the rights
enshrined in the Convention. They are entitled to special protection measures and, in accordance
with their evolving capacities, the progressive exercise of their rights. The Committee is concerned
that in implementing their obligations under the Convention, States parties have not given sufficient
attention to young children as rights holders and to the laws, policies and programmes required to
realize their rights during this distinct phase of their childhood. The Committee reaffirms that the
Convention on the Rights of the Child is to be applied holistically in early childhood, taking account
of the principle of the universality, indivisibility and interdependence of all human rights.
4. Definition of early childhood. Definitions of early childhood vary in different countries and
regions, according to local traditions and the organization of primary school systems. In some
countries, the transition from preschool to school occurs soon after 4 years old. In other countries,
this transition takes place at around 7 years old. In its consideration of rights in early childhood, the
Committee wishes to include all young children: at birth and throughout infancy; during the
preschool years; as well as during the transition to school. Accordingly, the Committee proposes as
an appropriate working definition of early childhood the period below the age of 8 years; States
parties should review their obligations towards young children in the context of this definition.
5. A positive agenda for early childhood. The Committee encourages States parties to construct a
positive agenda for rights in early childhood. A shift away from traditional beliefs that regard early
childhood mainly as a period for the socialization of the immature human being towards mature
adult status is required. The Convention requires that children, including the very youngest children,
be respected as persons in their own right. Young children should be recognized as active members
of families, communities and societies, with their own concerns, interests and points of view. For
the exercise of their rights, young children have particular requirements for physical nurturance,
emotional care and sensitive guidance, as well as for time and space for social play, exploration and
learning. These requirements can best be planned for within a framework of laws, policies and
programmes for early childhood, including a plan for implementation and independent monitoring,
for example through the appointment of a children's rights commissioner, and through assessments
of the impact of laws and policies on children (see general comment No. 2 (2002) on the role of
independent human rights institutions, para. 19).
6. Features of early childhood. Early childhood is a critical period for realizing children's rights.
During this period:
(a) Young children experience the most rapid period of growth and change during the
human lifespan, in terms of their maturing bodies and nervous systems, increasing mobility,
communication skills and intellectual capacities, and rapid shifts in their interests and abilities;
(b) Young children form strong emotional attachments to their parents or other caregivers, from
whom they seek and require nurturance, care, guidance and protection, in ways that are respectful
of their individuality and growing capacities;
(c) Young children establish their own important relationships with children of the same age, as well
as with younger and older children. Through these relationships they learn to negotiate and
coordinate shared activities, resolve conflicts, keep agreements and accept responsibility for others;
(d) Young children actively make sense of the physical, social and cultural dimensions of the world
they inhabit, learning progressively from their activities and their interactions with others, children
as well as adults;
(e) Young children's earliest years are the foundation for their physical and mental health, emotional
security, cultural and personal identity, and developing competencies;
(f) Young children's experiences of growth and development vary according to their individual
nature, as well as their gender, living conditions, family organization, care arrangements and
education systems;
(g) Young children's experiences of growth and development are powerfully shaped by cultural
beliefs about their needs and proper treatment, and about their active role in family and community.
7. Respecting the distinctive interests, experiences and challenges facing every young child is the
starting point for realizing their rights during this crucial phase of their lives.
8. Research into early childhood. The Committee notes the growing body of theory and research
which confirms that young children are best understood as social actors whose survival, well-being
and development are dependent on and built around close relationships. These relationships are
normally with a small number of key people, most often parents, members of the extended family
and peers, as well as caregivers and other early childhood professionals. At the same time, research
into the social and cultural dimensions of early childhood draws attention to the diverse ways in
which early development is understood and enacted, including varying expectations of the young
child and arrangements for his or her care and education. A feature of modern societies is that
increasing numbers of young children are growing up in multicultural communities and in contexts
marked by rapid social change, where beliefs and expectations about young children are also
changing, including through greater recognition of their rights. States parties are encouraged to draw
on beliefs and knowledge about early childhood in ways that are appropriate to local circumstances
and changing practices, and respect traditional values, provided these are not discriminatory, (article
2 of the Convention) nor prejudicial to children's health and well-being (art. 24.3), nor against their
best interests (art. 3). Finally, research has highlighted the particular risks to young children from
malnutrition, disease, poverty, neglect, social exclusion and a range of other adversities. It shows
that proper prevention and intervention strategies during early childhood have the potential to impact
positively on young children's current well-being and future prospects. Implementing child rights
in early childhood is thus an effective way to help prevent personal, social and educational
difficulties during middle childhood and adolescence (see general comment No. 4 (2003) on
adolescent health and development).
III. GENERAL PRINCIPLES AND RIGHTS IN EARLY CHILDHOOD
9. The Committee has identified articles 2, 3, 6 and 12 of the Convention as general principles (see
general comment No. 5 (2003) on the general measures of implementation of the Convention). Each
principle has implications for rights in early childhood.
10. Right to life, survival and development. Article 6 refers to the child's inherent right to life and
States parties' obligation to ensure, to the maximum extent possible, the survival and development
of the child. States parties are urged to take all possible measures to improve perinatal care for
mothers and babies, reduce infant and child mortality, and create conditions that promote the well-being of all young children during this critical phase of their lives. Malnutrition and preventable
diseases continue to be major obstacles to realizing rights in early childhood. Ensuring survival and
physical health are priorities, but States parties are reminded that article 6 encompasses all aspects
of development, and that a young child's health and psychosocial well-being are in many respects
interdependent. Both may be put at risk by adverse living conditions, neglect, insensitive or abusive
treatment and restricted opportunities for realizing human potential. Young children growing up in
especially difficult circumstances require particular attention (see section VI below). The Committee
reminds States parties (and others concerned) that the right to survival and development can only
be implemented in a holistic manner, through the enforcement of all the other provisions of the
Convention, including rights to health, adequate nutrition, social security, an adequate standard of
living, a healthy and safe environment, education and play (arts. 24, 27, 28, 29 and 31), as well as
through respect for the responsibilities of parents and the provision of assistance and quality services
(arts. 5 and 18). From an early age, children should themselves be included in activities promoting
good nutrition and a healthy and disease-preventing lifestyle.
11. Right to non-discrimination. Article 2 ensures rights to every child, without discrimination of
any kind. The Committee urges States parties to identify the implications of this principle for
realizing rights in early childhood:
(a) Article 2 means that young children in general must not be discriminated against on
any grounds, for example where laws fail to offer equal protection against violence for all children,
including young children. Young children are especially at risk of discrimination because they are
relatively powerless and depend on others for the realization of their rights;
(b) Article 2 also means that particular groups of young children must not be discriminated against.
Discrimination may take the form of reduced levels of nutrition; inadequate care and attention;
restricted opportunities for play, learning and education; or inhibition of free expression of feelings
and views. Discrimination may also be expressed through harsh treatment and unreasonable
expectations, which may be exploitative or abusive. For example:
(i) Discrimination against girl children is a serious violation of rights, affecting their
survival and all areas of their young lives as well as restricting their capacity to contribute positively
to society. They may be victims of selective abortion, genital mutilation, neglect and infanticide,
including through inadequate feeding in infancy. They may be expected to undertake excessive
family responsibilities and deprived of opportunities to participate in early childhood and primary
education;
(ii) Discrimination against children with disabilities reduces survival prospects and quality of life.
These children are entitled to the care, nutrition, nurturance and encouragement offered other
children. They may also require additional, special assistance in order to ensure their integration and
the realization of their rights;
(iii) Discrimination against children infected with or affected by HIV/AIDS deprives them of the
help and support they most require. Discrimination may be found within public policies, in the
provision of and access to services, as well as in everyday practices that violate these children's
rights (see also paragraph 27);
(iv) Discrimination related to ethnic origin, class/caste, personal circumstances and lifestyle, or
political and religious beliefs (of children or their parents) excludes children from full participation
in society. It affects parents' capacities to fulfil their responsibilities towards their children. It affects
children's opportunities and self-esteem, as well as encouraging resentment and conflict among
children and adults;
(v) Young children who suffer multiple discrimination (e.g. related to ethnic origin, social and
cultural status, gender and/or disabilities) are especially at risk.
12. Young children may also suffer the consequences of discrimination against their parents, for
example if children have been born out of wedlock or in other circumstances that deviate from
traditional values, or if their parents are refugees or asylum-seekers. States parties have a
responsibility to monitor and combat discrimination in whatever forms it takes and wherever it
occurs - within families, communities, schools or other institutions. Potential discrimination in
access to quality services for young children is a particular concern, especially where health,
education, welfare and other services are not universally available and are provided through a
combination of State, private and charitable organizations. As a first step, the Committee encourages
States parties to monitor the availability of and access to quality services that contribute to young
children's survival and development, including through systematic data collection, disaggregated
in terms of major variables related to children's and families' background and circumstances. As a
second step, actions may be required that guarantee that all children have an equal opportunity to
benefit from available services. More generally, States parties should raise awareness about
discrimination against young children in general, and against vulnerable groups in particular.
13. Best interests of the child. Article 3 sets out the principle that the best interests of the child are
a primary consideration in all actions concerning children. By virtue of their relative immaturity,
young children are reliant on responsible authorities to assess and represent their rights and best
interests in relation to decisions and actions that affect their well-being, while taking account of their
views and evolving capacities. The principle of best interests appears repeatedly within the
Convention (including in articles 9, 18, 20 and 21, which are most relevant to early childhood). The
principle of best interests applies to all actions concerning children and requires active measures to
protect their rights and promote their survival, growth, and well-being, as well as measures to
support and assist parents and others who have day-to-day responsibility for realizing children's
rights:
(a) Best interests of individual children. All decision-making concerning a child's care,
health, education, etc. must take account of the best interests principle, including decisions by
parents, professionals and others responsible for children. States parties are urged to make
provisions for young children to be represented independently in all legal proceedings by someone
who acts for the child's interests, and for children to be heard in all cases where they are capable of
expressing their opinions or preferences;
(b) Best interests of young children as a group or constituency. All law and policy development,
administrative and judicial decision-making and service provision that affect children must take
account of the best interests principle. This includes actions directly affecting children (e.g. related
to health services, care systems, or schools), as well as actions that indirectly impact on young
children (e.g. related to the environment, housing or transport).
14. Respect for the views and feelings of the young child. Article 12 states that the child has a right
to express his or her views freely in all matters affecting the child, and to have them taken into
account. This right reinforces the status of the young child as an active participant in the promotion,
protection and monitoring of their rights. Respect for the young child's agency - as a participant in
family, community and society - is frequently overlooked, or rejected as inappropriate on the
grounds of age and immaturity. In many countries and regions, traditional beliefs have emphasized
young children's need for training and socialization. They have been regarded as undeveloped,
lacking even basic capacities for understanding, communicating and making choices. They have
been powerless within their families, and often voiceless and invisible within society. The
Committee wishes to emphasize that article 12 applies both to younger and to older children. As
holders of rights, even the youngest children are entitled to express their views, which should be
"given due weight in accordance with the age and maturity of the child" (art. 12.1). Young children
are acutely sensitive to their surroundings and very rapidly acquire understanding of the people,
places and routines in their lives, along with awareness of their own unique identity. They make
choices and communicate their feelings, ideas and wishes in numerous ways, long before they are
able to communicate through the conventions of spoken or written language. In this regard:
(a) The Committee encourages States parties to take all appropriate measures to ensure that
the concept of the child as rights holder with freedom to express views and the right to be consulted
in matters that affect him or her is implemented from the earliest stage in ways appropriate to the
child's capacities, best interests, and rights to protection from harmful experiences;
(b) The right to express views and feelings should be anchored in the child's daily life at home
(including, when applicable, the extended family) and in his or her community; within the full range
of early childhood health, care and education facilities, as well as in legal proceedings; and in the
development of policies and services, including through research and consultations;
(c) States parties should take all appropriate measures to promote the active involvement of parents,
professionals and responsible authorities in the creation of opportunities for young children to
progressively exercise their rights within their everyday activities in all relevant settings, including
by providing training in the necessary skills. To achieve the right of participation requires adults to
adopt a child-centred attitude, listening to young children and respecting their dignity and their
individual points of view. It also requires adults to show patience and creativity by adapting their
expectations to a young child's interests, levels of understanding and preferred ways of
communicating.
IV. PARENTAL RESPONSIBILITIES AND ASSISTANCE FROM STATES PARTIES
15. A crucial role for parents and other primary caregivers. Under normal circumstances, a young
child's parents play a crucial role in the achievement of their rights, along with other members of
family, extended family or community, including legal guardians, as appropriate. This is fully
recognized within the Convention (especially article 5), along with the obligation on States parties
to provide assistance, including quality childcare services (especially article 18). The preamble to
the Convention refers to the family as "the fundamental group of society and the natural
environment for the growth and well-being of all its members and particularly children". The
Committee recognizes that "family" here refers to a variety of arrangements that can provide for
young children's care, nurturance and development, including the nuclear family, the extended
family, and other traditional and modern community-based arrangements, provided these are
consistent with children's rights and best interests.
16. Parents/primary caregivers and children's best interests. The responsibility vested in parents and
other primary caregivers is linked to the requirement that they act in children's best interests. Article
5 states that parents' role is to offer appropriate direction and guidance in "the exercise by the child
of the rights in the ... Convention". This applies equally to younger as to older children. Babies and
infants are entirely dependent on others, but they are not passive recipients of care, direction and
guidance. They are active social agents, who seek protection, nurturance and understanding from
parents or other caregivers, which they require for their survival, growth and well-being. Newborn
babies are able to recognize their parents (or other caregivers) very soon after birth, and they engage
actively in non-verbal communication. Under normal circumstances, young children form strong
mutual attachments with their parents or primary caregivers. These relationships offer children
physical and emotional security, as well as consistent care and attention. Through these relationships
children construct a personal identity and acquire culturally valued skills, knowledge and
behaviours. In these ways, parents (and other caregivers) are normally the major conduit through
which young children are able to realize their rights.
17. Evolving capacities as an enabling principle. Article 5 draws on the concept of "evolving
capacities" to refer to processes of maturation and learning whereby children progressively acquire
knowledge, competencies and understanding, including acquiring understanding about their rights
and about how they can best be realized. Respecting young children's evolving capacities is crucial
for the realization of their rights, and especially significant during early childhood, because of the
rapid transformations in children's physical, cognitive, social and emotional functioning, from
earliest infancy to the beginnings of schooling. Article 5 contains the principle that parents (and
others) have the responsibility to continually adjust the levels of support and guidance they offer to
a child. These adjustments take account of a child's interests and wishes as well as the child's
capacities for autonomous decision-making and comprehension of his or her best interests. While
a young child generally requires more guidance than an older child, it is important to take account
of individual variations in the capacities of children of the same age and of their ways of reacting
to situations. Evolving capacities should be seen as a positive and enabling process, not an excuse
for authoritarian practices that restrict children's autonomy and self-expression and which have
traditionally been justified by pointing to children's relative immaturity and their need for
socialization. Parents (and others) should be encouraged to offer "direction and guidance" in a child-centred way, through dialogue and example, in ways that enhance young children's capacities to
exercise their rights, including their right to participation (art. 12) and their right to freedom of
thought, conscience and religion (art. 14). |1|
18. Respecting parental roles. Article 18 of the Convention reaffirms that parents or legal guardians
have the primary responsibility for promoting children's development and well-being, with the
child's best interests as their basic concern (arts. 18.1 and 27.2). States parties should respect the
primacy of parents, mothers and fathers. This includes the obligation not to separate children from
their parents, unless it is in the child's best interests (art. 9). Young children are especially vulnerable
to adverse consequences of separations because of their physical dependence on and emotional
attachment to their parents/primary caregivers. They are also less able to comprehend the
circumstances of any separation. Situations which are most likely to impact negatively on young
children include neglect and deprivation of adequate parenting; parenting under acute material or
psychological stress or impaired mental health; parenting in isolation; parenting which is
inconsistent, involves conflict between parents or is abusive towards children; and situations where
children experience disrupted relationships (including enforced separations), or where they are
provided with low-quality institutional care. The Committee urges States parties to take all
necessary steps to ensure that parents are able to take primary responsibility for their children; to
support parents in fulfilling their responsibilities, including by reducing harmful deprivations,
disruptions and distortions in children's care; and to take action where young children's well-being
may be at risk. States parties' overall goals should include reducing the number of young children
abandoned or orphaned, as well as minimizing the numbers requiring institutional or other forms
of long-term care, except where this is judged to be in a young child's best interests (see also section
VI below).
19. Social trends and the role of the family. The Convention emphasizes that "both parents have
common responsibilities for the upbringing and development of the child", with fathers and mothers
recognized as equal caregivers (art. 18.1). The Committee notes that in practice family patterns are
variable and changing in many regions, as is the availability of informal networks of support for
parents, with an overall trend towards greater diversity in family size, parental roles and
arrangements for bringing up children. These trends are especially significant for young children,
whose physical, personal and psychological development is best provided for within a small number
of consistent, caring relationships. Typically, these relationships are with some combination of
mother, father, siblings, grandparents and other members of the extended family, along with
professional caregivers specialized in childcare and education. The Committee acknowledges that
each of these relationships can make a distinctive contribution to the fulfilment of children's rights
under the Convention and that a range of family patterns may be consistent with promoting
children's well-being. In some countries and regions, shifting social attitudes towards family,
marriage and parenting are impacting on young children's experiences of early childhood, for
example following family separations and reformations. Economic pressures also impact on young
children, for example, where parents are forced to work far away from their families and their
communities. In other countries and regions, the illness and death of one or both parents or other kin
due to HIV/AIDS is now a common feature of early childhood. These and many other factors impact
on parents' capacities to fulfil their responsibilities towards children. More generally, during periods
of rapid social change, traditional practices may no longer be viable or relevant to present parental
circumstances and lifestyles, but without sufficient time having elapsed for new practices to be
assimilated and new parental competencies understood and valued.
20. Assistance to parents. States parties are required to render appropriate assistance to parents, legal
guardians and extended families in the performance of their child-rearing responsibilities (arts. 18.2
and 18.3), including assisting parents in providing living conditions necessary for the child's
development (art. 27.2) and ensuring that children receive necessary protection and care (art. 3.2).
The Committee is concerned that insufficient account is taken of the resources, skills and personal
commitment required of parents and others responsible for young children, especially in societies
where early marriage and parenthood is still sanctioned as well as in societies with a high incidence
of young, single parents. Early childhood is the period of most extensive (and intensive) parental
responsibilities related to all aspects of children's well-being covered by the Convention: their
survival, health, physical safety and emotional security, standards of living and care, opportunities
for play and learning, and freedom of expression. Accordingly, realizing children's rights is in large
measure dependent on the well-being and resources available to those with responsibility for their
care. Recognizing these interdependencies is a sound starting point for planning assistance and
services to parents, legal guardians and other caregivers. For example:
(a) An integrated approach would include interventions that impact indirectly on parents'
ability to promote the best interests of children (e.g. taxation and benefits, adequate housing,
working hours) as well as those that have more immediate consequences (e.g. perinatal health
services for mother and baby, parent education, home visitors);
(b) Providing adequate assistance should take account of the new roles and skills required of parents,
as well as the ways that demands and pressures shift during early childhood - for example, as
children become more mobile, more verbally communicative, more socially competent, and as they
begin to participate in programmes of care and education;
(c) Assistance to parents will include provision of parenting education, parent counselling and other
quality services for mothers, fathers, siblings, grandparents and others who from time to time may
be responsible for promoting the child's best interests;
(d) Assistance also includes offering support to parents and other family members in ways that
encourage positive and sensitive relationships with young children and enhance understanding of
children's rights and best interests.
21. Appropriate assistance to parents can best be achieved as part of comprehensive policies for
early childhood (see section V below), including provision for health, care and education during the
early years. States parties should ensure that parents are given appropriate support to enable them
to involve young children fully in such programmes, especially the most disadvantaged and
vulnerable groups. In particular, article 18.3 acknowledges that many parents are economically
active, often in poorly paid occupations which they combine with their parental responsibilities.
Article 18.3 requires States parties to take all appropriate measures to ensure that children of
working parents have the right to benefit from childcare services, maternity protection and facilities
for which they are eligible. In this regard, the Committee recommends that States parties ratify the
Maternity Protection Convention, 2000 (No. 183) of the International Labour Organization.
V. COMPREHENSIVE POLICIES AND PROGRAMMES FOR EARLY CHILDHOOD,
ESPECIALLY FOR VULNERABLE CHILDREN
22. Rights-based, multisectoral strategies. In many countries and regions, early childhood has
received low priority in the development of quality services. These services have often been
fragmented. They have frequently been the responsibility of several government departments at
central and local levels, and their planning has often been piecemeal and uncoordinated. In some
cases, they have also been largely provided by the private and voluntary sector, without adequate
resources, regulation or quality assurance. States parties are urged to develop rights-based,
coordinated, multisectoral strategies in order to ensure that children's best interests are always the
starting point for service planning and provision. These should be based around a systematic and
integrated approach to law and policy development in relation to all children up to 8 years old. A
comprehensive framework for early childhood services, provisions and facilities is required, backed
up by information and monitoring systems. Comprehensive services will be coordinated with the
assistance provided to parents and will fully respect their responsibilities, as well as their
circumstances and requirements (as in articles 5 and 18 of the Convention; see section IV above).
Parents should also be consulted and involved in the planning of comprehensive services.
23. Programme standards and professional training appropriate to the age range. The Committee
emphasizes that a comprehensive strategy for early childhood must also take account of individual
children's maturity and individuality, in particular recognizing the changing developmental priorities
for specific age groups (for example, babies, toddlers, preschool and early primary school groups),
and the implications for programme standards and quality criteria. States parties must ensure that
the institutions, services and facilities responsible for early childhood conform to quality standards,
particularly in the areas of health and safety, and that staff possess the appropriate psychosocial
qualities and are suitable, sufficiently numerous and well-trained. Provision of services appropriate
to the circumstances, age and individuality of young children requires that all staff be trained to
work with this age group. Work with young children should be socially valued and properly paid,
in order to attract a highly qualified workforce, men as well as women. It is essential that they have
sound, up-to-date theoretical and practical understanding about children's rights and development
(see also paragraph 41); that they adopt appropriate child-centred care practices, curricula and
pedagogies; and that they have access to specialist professional resources and support, including a
supervisory and monitoring system for public and private programmes, institutions and services.
24. Access to services, especially for the most vulnerable. The Committee calls on States parties to
ensure that all young children (and those with primary responsibility for their well-being) are
guaranteed access to appropriate and effective services, including programmes of health, care and
education specifically designed to promote their well-being. Particular attention should be paid to
the most vulnerable groups of young children and to those who are at risk of discrimination (art. 2).
This includes girls, children living in poverty, children with disabilities, children belonging to
indigenous or minority groups, children from migrant families, children who are orphaned or lack
parental care for other reasons, children living in institutions, children living with mothers in prison,
refugee and asylum-seeking children, children infected with or affected by HIV/AIDS, and children
of alcohol- or drug-addicted parents (see also section VI).
25. Birth registration. Comprehensive services for early childhood begin at birth. The Committee
notes that provision for registration of all children at birth is still a major challenge for many
countries and regions. This can impact negatively on a child's sense of personal identity and children
may be denied entitlements to basic health, education and social welfare. As a first step in ensuring
the rights to survival, development and access to quality services for all children (art. 6), the
Committee recommends that States parties take all necessary measures to ensure that all children
are registered at birth. This can be achieved through a universal, well-managed registration system
that is accessible to all and free of charge. An effective system must be flexible and responsive to
the circumstances of families, for example by providing mobile registration units where appropriate.
The Committee notes that children who are sick or disabled are less likely to be registered in some
regions and emphasizes that all children should be registered at birth, without discrimination of any
kind (art. 2). The Committee also reminds States parties of the importance of facilitating late
registration of birth, and ensuring that children who have not been registered have equal access to
health care, protection, education and other social services.
26. Standard of living and social security. Young children are entitled to a standard of living
adequate for their physical, mental, spiritual, moral and social development (art. 27). The Committee
notes with concern that even the most basic standard of living is not assured for millions of young
children, despite widespread recognition of the adverse consequences of deprivation. Growing up
in relative poverty undermines children's well-being, social inclusion and self-esteem and reduces
opportunities for learning and development. Growing up in conditions of absolute poverty has even
more serious consequences, threatening children's survival and their health, as well as undermining
the basic quality of life. States parties are urged to implement systematic strategies to reduce poverty
in early childhood as well as combat its negative effects on children's well-being. All possible means
should be employed, including "material assistance and support programmes" for children and
families (art. 27.3), in order to assure to young children a basic standard of living consistent with
rights. Implementing children's right to benefit from social security, including social insurance, is
an important element of any strategy (art. 26).
27. Health-care provision. States parties should ensure that all children have access to the highest
attainable standard of health care and nutrition during their early years, in order to reduce infant
mortality and enable children to enjoy a healthy start in life (art. 24). In particular:
(a) States parties have a responsibility to ensure access to clean drinking water, adequate
sanitation, appropriate immunization, good nutrition and medical services, which are essential for
young children's health, as is a stress-free environment. Malnutrition and disease have long-term
impacts on children's physical health and development. They affect children's mental state,
inhibiting learning and social participation and reducing prospects for realizing their potential. The
same applies to obesity and unhealthy lifestyles;
(b) States parties have a responsibility to implement children's right to health by encouraging
education in child health and development, including about the advantages of breastfeeding,
nutrition, hygiene and sanitation. |2| Priority should also be given to the provision of appropriate
prenatal and post-natal health care for mothers and infants in order to foster healthy family-child
relationships, especially between a child and his or her mother (or other primary caregiver) (art.
24.2). Young children are themselves able to contribute to ensuring their personal health and
encouraging healthy lifestyles among their peers, for example through participation in appropriate,
child-centred health education programmes;
(c) The Committee wishes to draw States parties' attention to the particular challenges of HIV/AIDS
for early childhood. All necessary steps should be taken to: (i) prevent infection of parents and
young children, especially by intervening in chains of transmission, especially between father and
mother and from mother to baby; (ii) provide accurate diagnoses, effective treatment and other
forms of support for both parents and young children who are infected by the virus (including
antiretroviral therapies); and (iii) ensure adequate alternative care for children who have lost parents
or other primary caregivers due to HIV/AIDS, including healthy and infected orphans. (See also
general comment No. 3 (2003) on HIV/AIDS and the rights of the child.)
28. Early childhood education. The Convention recognizes the right of the child to education, and
primary education should be made compulsory and available free to all (art. 28). The Committee
recognizes with appreciation that some States parties are planning to make one year of preschool
education available and free of cost for all children. The Committee interprets the right to education
during early childhood as beginning at birth and closely linked to young children's right to maximum
development (art. 6.2). Linking education to development is elaborated in article 29.1: "States
parties agree that the education of the child shall be directed to: (a) the development of the child's
personality, talents and mental and physical abilities to their fullest potential". General comment No.
1 on the aims of education explains that the goal is to "empower the child by developing his or her
skills, learning and other capacities, human dignity, self-esteem and self-confidence" and that this
must be achieved in ways that are child-centred, child-friendly and reflect the rights and inherent
dignity of the child (para. 2). States parties are reminded that children's right to education include
all children, and that girls should be enabled to participate in education, without discrimination of
any kind (art. 2).
29. Parental and public responsibilities for early childhood education. The principle that parents (and
other primary caregivers) are children's first educators is well established and endorsed within the
Convention's emphasis on respect for the responsibilities of parents (sect. IV above). They are
expected to provide appropriate direction and guidance to young children in the exercise of their
rights, and provide an environment of reliable and affectionate relationships based on respect and
understanding (art. 5). The Committee invites States parties to make this principle a starting point
for planning early education, in two respects:
(a) In providing appropriate assistance to parents in the performance of their child-rearing responsibilities (art. 18.2), States parties should take all appropriate measures to enhance
parents' understanding of their role in their children's early education, encourage child-rearing
practices which are child-centred, encourage respect for the child's dignity and provide opportunities
for developing understanding, self-esteem and self-confidence;
(b) In planning for early childhood, States parties should at all times aim to provide programmes that
complement the parents' role and are developed as far as possible in partnership with parents,
including through active cooperation between parents, professionals and others in developing "the
child's personality, talents and mental and physical abilities to their fullest potential" (art. 29.1 (a)).
30. The Committee calls on States parties to ensure that all young children receive education in the
broadest sense (as outlined in paragraph 28 above), which acknowledges a key role for parents,
wider family and community, as well as the contribution of organized programmes of early
childhood education provided by the State, the community or civil society institutions. Research
evidence demonstrates the potential for quality education programmes to have a positive impact on
young children's successful transition to primary school, their educational progress and their long-term social adjustment. Many countries and regions now provide comprehensive early education
starting at 4 years old, which in some countries is integrated with childcare for working parents.
Acknowledging that traditional divisions between "care" and "education" services have not always
been in children's best interests, the concept of "Educare" is sometimes used to signal a shift towards
integrated services, and reinforces the recognition of the need for a coordinated, holistic,
multisectoral approach to early childhood.
31. Community-based programmes. The Committee recommends that States parties support early
childhood development programmes, including home- and community-based preschool
programmes, in which the empowerment and education of parents (and other caregivers) are main
features. States parties have a key role to play in providing a legislative framework for the provision
of quality, adequately resourced services, and for ensuring that standards are tailored to the
circumstances of particular groups and individuals and to the developmental priorities of particular
age groups, from infancy through to transition into school. They are encouraged to construct high-quality, developmentally appropriate and culturally relevant programmes and to achieve this by
working with local communities rather by imposing a standardized approach to early childhood care
and education. The Committee also recommends that States parties pay greater attention to, and
actively support, a rights-based approach to early childhood programmes, including initiatives
surrounding transition to primary school that ensure continuity and progression, in order to build
children's confidence, communication skills and enthusiasm for learning through their active
involvement in, among others, planning activities.
32. The private sector as service provider. With reference to its recommendations adopted during
its 2002 day of general discussion on "The private sector as service provider and its role in
implementing child rights" (see CRC/C/121, paras. 630-653), the Committee recommends that
States parties support the activities of the non-governmental sector as a channel for programme
implementation. It further calls on all non-State service providers ("for profit" as well as "non-profit" providers) to respect the principles and provisions of the Convention and, in this regard,
reminds States parties of their primary obligation to ensure its implementation. Early childhood
professionals - in both the State and non-State sectors - should be provided with thorough
preparation, ongoing training and adequate remuneration. In this context, States parties are
responsible for service provision for early childhood development. The role of civil society should
be complementary to - not a substitute for - the role of the State. Where non-State services play a
major role, the Committee reminds States parties that they have an obligation to monitor and
regulate the quality of provision to ensure that children's rights are protected and their best interests
served.
33. Human rights education in early childhood. In light of article 29 and the Committee's general
comment No. 1 (2001), the Committee also recommends that States parties include human rights
education within early childhood education. Such education should be participatory and empowering
to children, providing them with practical opportunities to exercise their rights and responsibilities
in ways adapted to their interests, concerns and evolving capacities. Human rights education of
young children should be anchored in everyday issues at home, in childcare centres, in early
education programmes and other community settings with which young children can identify.
34. Right to rest, leisure and play. The Committee notes that insufficient attention has been given
by States parties and others to the implementation of the provisions of article 31 of the Convention,
which guarantees "the right of the child to rest and leisure, to engage in play and recreational
activities appropriate to the age of the child and to participate freely in cultural life and the arts".
Play is one of the most distinctive features of early childhood. Through play, children both enjoy
and challenge their current capacities, whether they are playing alone or with others. The value of
creative play and exploratory learning is widely recognized in early childhood education. Yet
realizing the right to rest, leisure and play is often hindered by a shortage of opportunities for young
children to meet, play and interact in child-centred, secure, supportive, stimulating and stress-free
environments. Children's right-to-play space is especially at risk in many urban environments, where
the design and density of housing, commercial centres and transport systems combine with noise,
pollution and all manner of dangers to create a hazardous environment for young children.
Children's right to play can also be frustrated by excessive domestic chores (especially affecting
girls) or by competitive schooling. Accordingly, the Committee appeals to States parties, non-governmental organizations and private actors to identify and remove potential obstacles to the
enjoyment of these rights by the youngest children, including as part of poverty reduction strategies.
Planning for towns, and leisure and play facilities should take account of children's right to express
their views (art. 12), through appropriate consultations. In all these respects, States parties are
encouraged to pay greater attention and allocate adequate resources (human and financial) to the
implementation of the right to rest, leisure and play.
35. Modern communications technologies and early childhood. Article 17 recognizes the potential
for both traditional print-based media and modern information technology-based mass media to
contribute positively to the realization of children's rights. Early childhood is a specialist market for
publishers and media producers, who should be encouraged to disseminate material that is
appropriate to the capacities and interests of young children, socially and educationally beneficial
to their well-being, and which reflects the national and regional diversities of children's
circumstances, culture and language. Particular attention should be given to the need of minority
groups for access to media that promote their recognition and social inclusion. Article 17 (e) also
refers to the role of States parties in ensuring that children are protected from inappropriate and
potentially harmful material. Rapid increases in the variety and accessibility of modern technologies,
including Internet-based media, are a particular cause for concern. Young children are especially
at risk if they are exposed to inappropriate or offensive material. States parties are urged to regulate
media production and delivery in ways that protect young children, as well as support
parents/caregivers to fulfil their child-rearing responsibilities in this regard (art. 18).
VI. YOUNG CHILDREN IN NEED OF SPECIAL PROTECTION
36. Young children's vulnerability to risks. Throughout this general comment the Committee notes
that large numbers of young children grow up in difficult circumstances that are frequently in
violation of their rights. Young children are especially vulnerable to the harm caused by unreliable,
inconsistent relationships with parents and caregivers, or growing up in extreme poverty and
deprivation, or being surrounded by conflict and violence or displaced from their homes as refugees,
or any number of other adversities prejudicial to their well-being. Young children are less able to
comprehend these adversities or resist harmful effects on their health, or physical, mental, spiritual,
moral or social development. They are especially at risk where parents or other caregivers are unable
to offer adequate protection, whether due to illness, or death, or due to disruption to families or
communities. Whatever the difficult circumstances, young children require particular consideration
because of the rapid developmental changes they are experiencing; they are more vulnerable to
disease, trauma, and distorted or disturbed development, and they are relatively powerless to avoid
or resist difficulties and are dependent on others to offer protection and promote their best interests.
In the following paragraphs, the Committee draws States parties' attention to major difficult
circumstances referred to in the Convention that have clear implications for rights in early
childhood. This list is not exhaustive, and children may in any case be subject to multiple risks. In
general, the goal of States parties should be to ensure that every child, in every circumstance,
receives adequate protection in fulfilment of their rights:
(a) Abuse and neglect (art. 19). Young children are frequent victims of neglect, maltreatment and
abuse, including physical and mental violence. Abuse very often happens within families, which can
be especially destructive. Young children are least able to avoid or resist, least able to comprehend
what is happening and least able to seek the protection of others. There is compelling evidence that
trauma as a result of neglect and abuse has negative impacts on development, including, for the very
youngest children, measurable effects on processes of brain maturation. Bearing in mind the
prevalence of abuse and neglect in early childhood and the evidence that it has long-term
repercussions, States parties should take all necessary measures to safeguard young children at risk
and offer protection to victims of abuse, taking positive steps to support their recovery from trauma
while avoiding stigmatization for the violations they have suffered;
(b) Children without families (art. 20 and 21). Children's rights to development are at serious risk
when they are orphaned, abandoned or deprived of family care or when they suffer long-term
disruptions to relationships or separations (e.g. due to natural disasters or other emergencies,
epidemics such as HIV/AIDS, parental imprisonment, armed conflicts, wars and forced migration).
These adversities will impact on children differently depending on their personal resilience, their
age and their circumstances, as well as the availability of wider sources of support and alternative
care. Research suggests that low-quality institutional care is unlikely to promote healthy physical
and psychological development and can have serious negative consequences for long-term social
adjustment, especially for children under 3 but also for children under 5 years old. To the extent that
alternative care is required, early placement in family-based or family-like care is more likely to
produce positive outcomes for young children. States parties are encouraged to invest in and support
forms of alternative care that can ensure security, continuity of care and affection, and the
opportunity for young children to form long-term attachments based on mutual trust and respect, for
example through fostering, adoption and support for members of extended families. Where adoption
is envisaged "the best interests of the child shall be the paramount consideration" (art. 21), not just
"a primary consideration" (art. 3), systematically bearing in mind and respecting all relevant rights
of the child and obligations of States parties set out elsewhere in the Convention and recalled in the
present general comment;
(c) Refugees (art. 22). Young children who are refugees are most likely to be disoriented, having
lost much that is familiar in their everyday surroundings and relationships. They and their parents
are entitled to equal access to health care, education and other services. Children who are
unaccompanied or separated from their families are especially at risk. The Committee offers detailed
guidance on the care and protection of these children in general comment No. 6 (2005) on the
treatment of unaccompanied and separated children outside their country of origin;
(d) Children with disabilities (art. 23). Early childhood is the period during which disabilities are
usually identified and the impact on children's well-being and development recognized. Young
children should never be institutionalized solely on the grounds of disability. It is a priority to ensure
that they have equal opportunities to participate fully in education and community life, including
by the removal of barriers that impede the realization of their rights. Young disabled children are
entitled to appropriate specialist assistance, including support for their parents (or other caregivers).
Disabled children should at all times be treated with dignity and in ways that encourage their self-reliance. (See also the recommendations from the Committee's 1997 day of general discussion on
"The rights of children with disabilities" contained in document CRC/C/66);
(e) Harmful work (art. 32). In some countries and regions, children are socialized to work from an
early age, including in activities that are potentially hazardous, exploitative and damaging to their
health, education and long-term prospects. For example, young children may be initiated into
domestic work or agricultural labour, or assist parents or siblings engaged in hazardous activities.
Even very young babies may be vulnerable to economic exploitation, as when they are used or hired
out for begging. Exploitation of young children in the entertainment industry, including television,
film, advertising and other modern media, is also a cause for concern. States parties have particular
responsibilities in relation to extreme forms of hazardous child labour identified in the Worst Forms
of Child Labour Convention, 1999 (No. 182) of the ILO;
(f) Substance abuse (art. 33). While very young children are only rarely likely to be substance
abusers, they may require specialist health care if born to alcohol- or drug-addicted mothers, and
protection where family members are abusers and they are at risk of exposure to drugs. They may
also suffer adverse consequences of alcohol or drug abuse on family living standards and quality of
care, as well as being at risk of early initiation into substance abuse;
(g) Sexual abuse and exploitation (art. 34). Young children, especially girls, are vulnerable to early
sexual abuse and exploitation within and outside families. Young children in difficult circumstances
are at particular risk, for example girl children employed as domestic workers. Young children may
also be victims of producers of pornography; this is covered by the Optional Protocol to the
Convention on the Rights of the Child on the sale of children, child prostitution and child
pornography of 2002;
(h) Sale, trafficking and abduction of children (art. 35). The Committee has frequently expressed
concern about evidence of the sale and trafficking of abandoned and separated children for various
purposes. As far as the youngest age groups are concerned, these purposes can include adoption,
particularly (though not solely) by foreigners. In addition to the Optional Protocol on the sale of
children, child prostitution and child pornography, the 1993 Hague Convention on Protection of
Children and Cooperation in Respect of Intercountry Adoption provides a framework and
mechanism for preventing abuses in this sphere, and the Committee has therefore always
consistently and strongly urged all States parties that recognize and/or permit adoption to ratify or
accede to this treaty. Universal birth registration, in addition to international cooperation, can help
to combat this violation of rights;
(i) Deviant behaviour and lawbreaking (art. 40). Under no circumstances should young children
(defined as under 8 years old; see paragraph 4) be included in legal definitions of minimum age of
criminal responsibility. Young children who misbehave or violate laws require sympathetic help and
understanding, with the goal of increasing their capacities for personal control, social empathy and
conflict resolution. States parties should ensure that parents/caregivers are provided adequate
support and training to fulfil their responsibilities (art. 18) and that young children have access to
quality early childhood education and care, and (where appropriate) specialist guidance/therapies.
37. In each of these circumstances, and in the case of all other forms of exploitation (art. 36), the
Committee urges States parties to incorporate the particular situation of young children into all
legislation, policies and interventions to promote physical and psychological recovery and social
reintegration within an environment that promotes dignity and self-respect (art. 39).
VII. CAPACITY-BUILDING FOR EARLY CHILDHOOD
38. Resource allocation for early childhood. In order to ensure that young children's rights are fully
realized during this crucial phase of their lives (and bearing in mind the impact of early childhood
experiences on their long-term prospects), States parties are urged to adopt comprehensive, strategic
and time-bound plans for early childhood within a rights-based framework. This requires an increase
in human and financial resource allocations for early childhood services and programmes (art. 4).
The Committee acknowledges that States parties implementing child rights in early childhood do
so from very different starting points, in terms of existing infrastructures for early childhood
policies, services and professional training, as well as levels of resources potentially available to
allocate to early childhood. The Committee also acknowledges that States parties may be faced with
competing priorities to implement rights throughout childhood, for example where universal health
services and primary education have still not been achieved. It is nonetheless important that there
be sufficient public investment in services, infrastructure and overall resources specifically allocated
to early childhood, for the many reasons set out in this general comment. In this connection, States
parties are encouraged to develop strong and equitable partnerships between the Government, public
services, non-governmental organizations, the private sector and families to finance comprehensive
services in support of young children's rights. Finally, the Committee emphasizes that where
services are decentralized, this should not be to the disadvantage of young children.
39. Data collection and management. The Committee reiterates the importance of comprehensive
and up-to-date quantitative and qualitative data on all aspects of early childhood for the formulation,
monitoring and evaluation of progress achieved, and for assessment of the impact of policies. The
Committee is aware that many States parties lack adequate national data collection systems on early
childhood for many areas covered by the Convention, and in particular that specific and
disaggregated information on children in the early years is not readily available. The Committee
urges all States parties to develop a system of data collection and indicators consistent with the
Convention and disaggregated by gender, age, family structure, urban and rural residence, and other
relevant categories. This system should cover all children up to the age of 18 years, with specific
emphasis on early childhood, particularly children belonging to vulnerable groups.
40. Capacity-building for research in early childhood. The Committee noted earlier in this general
comment that extensive research has been carried out on aspects of children's health, growth, and
cognitive, social and cultural development, on the influence of both positive and negative factors
on their well-being, and on the potential impact of early childhood care and education programmes.
Increasingly, research is also being carried out on early childhood from a human rights perspective,
notably on ways that children's participatory rights can be respected, including through their
participation in the research process. Theory and evidence from early childhood research has a great
deal to offer in the development of policies and practices, as well as in the monitoring and evaluation
of initiatives and the education and training of all responsible for the well-being of young children.
But the Committee also draws attention to the limitations of current research, through its focus
mainly on early childhood in a limited range of contexts and regions of the world. As part of
planning for early childhood, the Committee encourages States parties to develop national and local
capacities for early childhood research, especially from a rights-based perspective.
41. Training for rights in early childhood. Knowledge and expertise about early childhood are not
static but change over time. This is due variously to social trends impacting on the lives of young
children, their parents and other caregivers, changing policies and priorities for their care and
education, innovations in childcare, curricula and pedagogy, as well as the emergence of new
research. Implementing child rights in early childhood sets challenges for all those responsible for
children, as well as for children themselves as they gain an understanding of their role in their
families, schools and communities. States parties are encouraged to undertake systematic child
rights training for children and their parents, as well as for all professionals working for and with
children, in particular parliamentarians, judges, magistrates, lawyers, law enforcement officials, civil
servants, personnel in institutions and places of detention for children, teachers, health personnel,
social workers and local leaders. Furthermore, the Committee urges States parties to conduct
awareness-raising campaigns for the public at large.
42. International assistance. Acknowledging the resource constraints affecting many States parties
seeking to implement the comprehensive provisions outlined in this general comment, the
Committee recommends that donor institutions, including the World Bank, other United Nations
bodies and bilateral donors support early childhood development programmes financially and
technically, and that it be one of their main targets in assisting sustainable development in countries
receiving international assistance. Effective international cooperation can also strengthen capacity-building for early childhood, in terms of policy development, programme development, research and
professional training.
43. Looking forward. The Committee urges all States parties, inter-governmental organizations, non-governmental organizations, academics, professional groups and grass-roots communities to
continue advocating for the establishment of independent institutions on children's rights and foster
continuous, high-level policy dialogues and research on the crucial importance of quality in early
childhood, including dialogues at international, national, regional and local levels.
Notes:
1. See G. Lansdown, The Evolving Capacities of the Child (Florence: UNICEF Innocenti Research
Centre, 2005). [Back]
2. See Global Strategy for Infant and Young Child Feeding, World Health Organization, 2003. [Back]
Forty-second session (2006)
General comment No. 8:
The right of the child to protection from corporal punishment and other cruel or degrading
forms of punishment (arts. 19; 28, para. 2; and 37, inter alia)
I. OBJECTIVES
1. Following its two days of general discussion on violence against children, held in 2000 and 2001,
the Committee on the Rights of the Child resolved to issue a series of general comments concerning
eliminating violence against children, of which this is the first. The Committee aims to guide States
parties in understanding the provisions of the Convention concerning the protection of children
against all forms of violence. This general comment focuses on corporal punishment and other cruel
or degrading forms of punishment, which are currently very widely accepted and practised forms
of violence against children.
2. The Convention on the Rights of the Child and other international human rights instruments
recognize the right of the child to respect for the child's human dignity and physical integrity and
equal protection under the law. The Committee is issuing this general comment to highlight the
obligation of all States parties to move quickly to prohibit and eliminate all corporal punishment and
all other cruel or degrading forms of punishment of children and to outline the legislative and other
awareness-raising and educational measures that States must take.
3. Addressing the widespread acceptance or tolerance of corporal punishment of children and
eliminating it, in the family, schools and other settings, is not only an obligation of States parties
under the Convention. It is also a key strategy for reducing and preventing all forms of violence in
societies.
II. BACKGROUND
4. The Committee has, from its earliest sessions, paid special attention to asserting children's right
to protection from all forms of violence. In its examination of States parties' reports, and most
recently in the context of the United Nations Secretary-General's study on violence against children,
it has noted with great concern the widespread legality and persisting social approval of corporal
punishment and other cruel or degrading punishment of children. |1| Already in 1993, the Committee
noted in the report of its fourth session that it "recognized the importance of the question of corporal
punishment in improving the system of promotion and protection of the rights of the child and
decided to continue to devote attention to it in the process of examining States parties' reports". |2|
5. Since it began examining States parties' reports the Committee has recommended prohibition of
all corporal punishment, in the family and other settings, to more than 130 States in all continents. |3|
The Committee is encouraged that a growing number of States are taking appropriate legislative and
other measures to assert children's right to respect for their human dignity and physical integrity and
to equal protection under the law. The Committee understands that by 2006, more than 100 States
had prohibited corporal punishment in their schools and penal systems for children. A growing
number have completed prohibition in the home and family and all forms of alternative care. |4|
6. In September 2000, the Committee held the first of two days of general discussion on violence
against children. It focused on "State violence against children" and afterwards adopted detailed
recommendations, including for the prohibition of all corporal punishment and the launching of
public information campaigns "to raise awareness and sensitize the public about the severity of
human rights violations in this domain and their harmful impact on children, and to address cultural
acceptance of violence against children, promoting instead 'zero-tolerance' of violence". |5|
7. In April 2001, the Committee adopted its first general comment on "The aims of education" and
reiterated that corporal punishment is incompatible with the Convention: "... Children do not lose
their human rights by virtue of passing through the school gates. Thus, for example, education must
be provided in a way that respects the inherent dignity of the child, enables the child to express his
or her views freely in accordance with article 12, paragraph 1, and to participate in school life.
Education must also be provided in a way that respects the strict limits on discipline reflected in
article 28, paragraph 2, and promotes non-violence in school. The Committee has repeatedly made
clear in its concluding observations that the use of corporal punishment does not respect the inherent
dignity of the child nor the strict limits on school discipline .". |6|
8. In recommendations adopted following the second day of general discussion, on "Violence
against children within the family and in schools", held in September 2001, the Committee called
upon States to "enact or repeal, as a matter of urgency, their legislation in order to prohibit all forms
of violence, however light, within the family and in schools, including as a form of discipline, as
required by the provisions of the Convention ..." |7|
9. Another outcome of the Committee's 2000 and 2001 days of general discussion was a
recommendation that the United Nations Secretary-General should be requested, through the
General Assembly, to carry out an in-depth international study on violence against children. The
United Nations General Assembly took this forward in 2001. |8| Within the context of the United
Nations study, carried out between 2003 and 2006, the need to prohibit all currently legalized
violence against children has been highlighted, as has children's own deep concern at the almost
universal high prevalence of corporal punishment in the family and also its persisting legality in
many States in schools and other institutions, and in penal systems for children in conflict with the
law.
III. DEFINITIONS
10. "Child" is defined as in the Convention as "every human being below the age of eighteen years
unless under the law applicable to the child, majority is attained earlier". |9|
11. The Committee defines "corporal" or "physical" punishment as any punishment in which
physical force is used and intended to cause some degree of pain or discomfort, however light. Most
involves hitting ("smacking", "slapping", "spanking") children, with the hand or with an implement -
a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking
or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to
stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing
children's mouths out with soap or forcing them to swallow hot spices). In the view of the
Committee, corporal punishment is invariably degrading. In addition, there are other non-physical
forms of punishment that are also cruel and degrading and thus incompatible with the Convention.
These include, for example, punishment which belittles, humiliates, denigrates, scapegoats,
threatens, scares or ridicules the child.
12. Corporal punishment and other cruel or degrading forms of punishment of children take place
in many settings, including within the home and family, in all forms of alternative care, schools and
other educational institutions and justice systems - both as a sentence of the courts and as a
punishment within penal and other institutions - in situations of child labour, and in the community.
13. In rejecting any justification of violence and humiliation as forms of punishment for children,
the Committee is not in any sense rejecting the positive concept of discipline. The healthy
development of children depends on parents and other adults for necessary guidance and direction,
in line with children's evolving capacities, to assist their growth towards responsible life in society.
14. The Committee recognizes that parenting and caring for children, especially babies and young
children, demand frequent physical actions and interventions to protect them. This is quite distinct
from the deliberate and punitive use of force to cause some degree of pain, discomfort or
humiliation. As adults, we know for ourselves the difference between a protective physical action
and a punitive assault; it is no more difficult to make a distinction in relation to actions involving
children. The law in all States, explicitly or implicitly, allows for the use of non-punitive and
necessary force to protect people.
15. The Committee recognizes that there are exceptional circumstances in which teachers and others,
e.g. those working with children in institutions and with children in conflict with the law, may be
confronted by dangerous behaviour which justifies the use of reasonable restraint to control it. Here
too there is a clear distinction between the use of force motivated by the need to protect a child or
others and the use of force to punish. The principle of the minimum necessary use of force for the
shortest necessary period of time must always apply. Detailed guidance and training is also required,
both to minimize the necessity to use restraint and to ensure that any methods used are safe and
proportionate to the situation and do not involve the deliberate infliction of pain as a form of control.
IV. HUMAN RIGHTS STANDARDS AND CORPORAL PUNISHMENT OF CHILDREN
16. Before the adoption of the Convention on the Rights of the Child, the International Bill of
Human Rights - the Universal Declaration and the two International Covenants, on Civil and
Political Rights and on Economic, Social and Cultural Rights - upheld "everyone's" right to respect
for his/her human dignity and physical integrity and to equal protection under the law. In asserting
States' obligation to prohibit and eliminate all corporal punishment and all other cruel or degrading
forms of punishment, the Committee notes that the Convention on the Rights of the Child builds on
this foundation. The dignity of each and every individual is the fundamental guiding principle of
international human rights law.
17. The preamble to the Convention on the Rights of the Child affirms, in accordance with the
principles in the Charter of the United Nations, repeated in the preamble to the Universal
Declaration, 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
preamble to the Convention also recalls that, in the Universal Declaration, the United Nations "has
proclaimed that childhood is entitled to special care and assistance".
18. Article 37 of the Convention requires States to ensure that "no child shall be subjected to torture
or other cruel, inhuman or degrading treatment or punishment". This is complemented and extended
by article 19, which requires States to "take all appropriate legislative, administrative, social and
educational measures to protect the child from all forms of physical or mental violence, injury or
abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while
in the care of parent(s), legal guardian(s) or any other person who has the care of the child". There
is no ambiguity: "all forms of physical or mental violence" does not leave room for any level of
legalized violence against children. Corporal punishment and other cruel or degrading forms of
punishment are forms of violence and States must take all appropriate legislative, administrative,
social and educational measures to eliminate them.
19. In addition, article 28, paragraph 2, of the Convention refers to school discipline and requires
States parties to "take all appropriate measures to ensure that school discipline is administered in
a manner consistent with the child's human dignity and in conformity with the present Convention".
20. Article 19 and article 28, paragraph 2, do not refer explicitly to corporal punishment. The
travauxpreparatories for the Convention do not record any discussion of corporal punishment during
the drafting sessions. But the Convention, like all human rights instruments, must be regarded as a
living instrument, whose interpretation develops over time. In the 17 years since the Convention was
adopted, the prevalence of corporal punishment of children in their homes, schools and other
institutions has become more visible, through the reporting process under the Convention and
through research and advocacy by, among others, national human rights institutions and non-governmental organizations (NGOs).
21. Once visible, it is clear that the practice directly conflicts with the equal and inalienable rights
of children to respect for their human dignity and physical integrity. The distinct nature of children,
their initial dependent and developmental state, their unique human potential as well as their
vulnerability, all demand the need for more, rather than less, legal and other protection from all
forms of violence.
22. The Committee emphasizes that eliminating violent and humiliating punishment of children,
through law reform and other necessary measures, is an immediate and unqualified obligation of
States parties. It notes that other treaty bodies, including the Human Rights Committee, the
Committee on Economic, Social and Cultural Rights and the Committee against Torture have
reflected the same view in their concluding observations on States parties' reports under the relevant
instruments, recommending prohibition and other measures against corporal punishment in schools,
penal systems and, in some cases, the family. For example, the Committee on Economic, Social and
Cultural Rights, in its general comment No. 13 (1999) on "The right to education" stated: "In the
Committee's view, corporal punishment is inconsistent with the fundamental guiding principle of
international human rights law enshrined in the Preambles to the Universal Declaration and both
Covenants: the dignity of the individual. Other aspects of school discipline may also be inconsistent
with school discipline, including public humiliation." |10|
23. Corporal punishment has also been condemned by regional human rights mechanisms. The
European Court of Human Rights, in a series of judgements, has progressively condemned corporal
punishment of children, first in the penal system, then in schools, including private schools, and
most recently in the home. |11| The European Committee of Social Rights, monitoring compliance of
member States of the Council of Europe with the European Social Charter and Revised Social
Charter, has found that compliance with the Charters requires prohibition in legislation against any
form of violence against children, whether at school, in other institutions, in their home or
elsewhere. |12|
24. An Advisory Opinion of the Inter-American Court of Human Rights, on the Legal Status and
Human Rights of the Child (2002) holds that the States parties to the American Convention on
Human Rights "are under the obligation . to adopt all positive measures required to ensure
protection of children against mistreatment, whether in their relations with public authorities, or in
relations among individuals or with non-governmental entities". The Court quotes provisions of the
Convention on the Rights of the Child, conclusions of the Committee on the Rights of the Child and
also judgements of the European Court of Human Rights relating to States' obligations to protect
children from violence, including within the family. The Court concludes that "the State has the duty
to adopt positive measures to fully ensure effective exercise of the rights of the . |13|
25. The African Commission on Human and Peoples' Rights monitors implementation of the African
Charter on Human and Peoples' Rights. In a 2003 decision on an individual communication
concerning a sentence of "lashes" imposed on students, the Commission found that the punishment
violated article 5 of the African Charter, which prohibits cruel, inhuman or degrading punishment.
It requested the relevant Government to amend the law, abolishing the penalty of lashes, and to take
appropriate measures to ensure compensation of the victims. In its decision, the Commission states:
"There is no right for individuals, and particularly the Government of a country to apply physical
violence to individuals for offences. Such a right would be tantamount to sanctioning State-sponsored torture under the Charter and contrary to the very nature of this human rights treaty." |14|
The Committee on the Rights of the Child is pleased to note that constitutional and other high-level
courts in many countries have issued decisions condemning corporal punishment of children in some
or all settings, and in most cases quoting the Convention on the Rights of the Child. |15|
26. When the Committee on the Rights of the Child has raised eliminating corporal punishment with
certain States during the examination of their reports, governmental representatives have sometimes
suggested that some level of "reasonable" or "moderate" corporal punishment can be justified as in
the "best interests" of the child. The Committee has identified, as an important general principle, the
Convention's requirement that the best interests of the child should be a primary consideration in
all actions concerning children (art. 3, para. 1). The Convention also asserts, in article 18, that the
best interests of the child will be parents' basic concern. But interpretation of a child's best interests
must be consistent with the whole Convention, including the obligation to protect children from all
forms of violence and the requirement to give due weight to the child's views; it cannot be used to
justify practices, including corporal punishment and other forms of cruel or degrading punishment,
which conflict with the child's human dignity and right to physical integrity.
27. The preamble to the Convention upholds the family as "the fundamental group of society and
the natural environment for the growth and well-being of all its members and particularly children".
The Convention requires States to respect and support families. There is no conflict whatsoever with
States' obligation to ensure that the human dignity and physical integrity of children within the
family receive full protection alongside other family members.
28. Article 5 requires States to respect the responsibilities, rights and duties of parents "to provide,
in a manner consistent with the evolving capacities of the child, appropriate direction and guidance
in the exercise by the child of the rights recognized in the present Convention". Here again,
interpretation of "appropriate" direction and guidance must be consistent with the whole Convention
and leaves no room for justification of violent or other cruel or degrading forms of discipline.
29. Some raise faith-based justifications for corporal punishment, suggesting that certain
interpretations of religious texts not only justify its use, but provide a duty to use it. Freedom of
religious belief is upheld for everyone in the International Covenant on Civil and Political Rights
(art. 18), but practice of a religion or belief must be consistent with respect for others' human dignity
and physical integrity. Freedom to practise one's religion or belief may be legitimately limited in
order to protect the fundamental rights and freedoms of others. In certain States, the Committee has
found that children, in some cases from a very young age, in other cases from the time that they are
judged to have reached puberty, may be sentenced to punishments of extreme violence, including
stoning and amputation, prescribed under certain interpretations of religious law. Such punishments
plainly violate the Convention and other international human rights standards, as has been
highlighted also by the Human Rights Committee and the Committee against Torture, and must be
prohibited.
V. MEASURES AND MECHANISMS REQUIRED TO ELIMINATE CORPORAL
PUNISHMENT AND OTHER CRUEL OR DEGRADING FORMS OF PUNISHMENT
1. Legislative measures
30. The wording of article 19 of the Convention builds upon article 4 and makes clear that legislative
as well as other measures are required to fulfil States' obligations to protect children from all forms
of violence. The Committee has welcomed the fact that, in many States, the Convention or its
principles have been incorporated into domestic law. All States have criminal laws to protect
citizens from assault. Many have constitutions and/or legislation reflecting international human
rights standards and article 37 of the Convention on the Rights of the Child, which uphold
"everyone's" right to protection from torture and cruel, inhuman or degrading treatment or
punishment. Many also have specific child protection laws that make "ill-treatment" or "abuse" or
"cruelty" an offence. But the Committee has learned from its examination of States' reports that such
legislative provisions do not generally guarantee the child protection from all corporal punishment
and other cruel or degrading forms of punishment, in the family and in other settings.
31. In its examination of reports, the Committee has noted that in many States there are explicit legal
provisions in criminal and/or civil (family) codes that provide parents and other carers with a
defence or justification for using some degree of violence in "disciplining" children. For example,
the defence of "lawful", "reasonable" or "moderate" chastisement or correction has formed part of
English common law for centuries, as has a "right of correction" in French law. At one time in many
States the same defence was also available to justify the chastisement of wives by their husbands
and of slaves, servants and apprentices by their masters. The Committee emphasizes that the
Convention requires the removal of any provisions (in statute or common - case law) that allow
some degree of violence against children (e.g. "reasonable" or "moderate" chastisement or
correction), in their homes/families or in any other setting.
32. In some States, corporal punishment is specifically authorized in schools and other institutions,
with regulations setting out how it is to be administered and by whom. And in a minority of States,
corporal punishment using canes or whips is still authorized as a sentence of the courts for child
offenders. As frequently reiterated by the Committee, the Convention requires the repeal of all such
provisions.
33. In some States, the Committee has observed that while there is no explicit defence or
justification of corporal punishment in the legislation, nevertheless traditional attitudes to children
imply that corporal punishment is permitted. Sometimes these attitudes are reflected in court
decisions (in which parents or teachers or other carers have been acquitted of assault or ill-treatment
on the grounds that they were exercising a right or freedom to use moderate "correction").
34. In the light of the traditional acceptance of violent and humiliating forms of punishment of
children, a growing number of States have recognized that simply repealing authorization of
corporal punishment and any existing defences is not enough. In addition, explicit prohibition of
corporal punishment and other cruel or degrading forms of punishment, in their civil or criminal
legislation, is required in order to make it absolutely clear that it is as unlawful to hit or "smack" or
"spank" a child as to do so to an adult, and that the criminal law on assault does apply equally to
such violence, regardless of whether it is termed "discipline" or "reasonable correction".
35. Once the criminal law applies fully to assaults on children, the child is protected from corporal
punishment wherever he or she is and whoever the perpetrator is. But in the view of the Committee,
given the traditional acceptance of corporal punishment, it is essential that the applicable sectoral
legislation - e.g. family law, education law, law relating to all forms of alternative care and justice
systems, employment law - clearly prohibits its use in the relevant settings. In addition, it is valuable
if professional codes of ethics and guidance for teachers, carers and others, and also the rules or
charters of institutions, emphasize the illegality of corporal punishment and other cruel or degrading
forms of punishment.
36. The Committee is also concerned at reports that corporal punishment and other cruel or
degrading punishments are used in situations of child labour, including in the domestic context. The
Committee reiterates that the Convention and other applicable human rights instruments protect the
child from economic exploitation and from any work that is likely to be hazardous, interferes with
the child's education, or is harmful to the child's development, and that they require certain
safeguards to ensure the effective enforcement of this protection. The Committee emphasizes that
it is essential that the prohibition of corporal punishment and other cruel or degrading forms of
punishment must be enforced in any situations in which children are working.
37. Article 39 of the Convention requires States to take all appropriate measures to promote physical
and psychological recovery and social reintegration of a child victim of "any form of neglect,
exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or
punishment". Corporal punishment and other degrading forms of punishment may inflict serious
damage to the physical, psychological and social development of children, requiring appropriate
health and other care and treatment. This must take place in an environment that fosters the integral
health, self-respect and dignity of the child, and be extended as appropriate to the child's family
group. There should be an interdisciplinary approach to planning and providing care and treatment,
with specialized training of the professionals involved. The child's views should be given due weight
concerning all aspects of their treatment and in reviewing it.
2. Implementation of prohibition of corporal punishment and other cruel or degrading
forms of punishment
38. The Committee believes that implementation of the prohibition of all corporal punishment
requires awareness-raising, guidance and training (see paragraph 45 et seq. below) for all those
involved. This must ensure that the law operates in the best interests of the affected children - in
particular when parents or other close family members are the perpetrators. The first purpose of law
reform to prohibit corporal punishment of children within the family is prevention: to prevent
violence against children by changing attitudes and practice, underlining children's right to equal
protection and providing an unambiguous foundation for child protection and for the promotion of
positive, non-violent and participatory forms of child-rearing.
39. Achieving a clear and unconditional prohibition of all corporal punishment will require varying
legal reforms in different States parties. It may require specific provisions in sectoral laws covering
education, juvenile justice and all forms of alternative care. But it should be made explicitly clear
that the criminal law provisions on assault also cover all corporal punishment, including in the
family. This may require an additional provision in the criminal code of the State party. But it is also
possible to include a provision in the civil code or family law, prohibiting the use of all forms of
violence, including all corporal punishment. Such a provision emphasizes that parents or other
caretakers can no longer use any traditional defence that it is their right ("reasonably" or
"moderately") to use corporal punishment if they face prosecution under the criminal code. Family
law should also positively emphasize that parental responsibility includes providing appropriate
direction and guidance to children without any form of violence.
40. The principle of equal protection of children and adults from assault, including within the family,
does not mean that all cases of corporal punishment of children by their parents that come to light
should lead to prosecution of parents. The de minimis principle - that the law does not concern itself
with trivial matters - ensures that minor assaults between adults only come to court in very
exceptional circumstances; the same will be true of minor assaults on children. States need to
develop effective reporting and referral mechanisms. While all reports of violence against children
should be appropriately investigated and their protection from significant harm assured, the aim
should be to stop parents from using violent or other cruel or degrading punishments through
supportive and educational, not punitive, interventions.
41. Children's dependent status and the unique intimacy of family relations demand that decisions
to prosecute parents, or to formally intervene in the family in other ways, should be taken with very
great care. Prosecuting parents is in most cases unlikely to be in their children's best interests. It is
the Committee's view that prosecution and other formal interventions (for example, to remove the
child or remove the perpetrator) should only proceed when they are regarded both as necessary to
protect the child from significant harm and as being in the best interests of the affected child. The
affected child's views should be given due weight, according to his or her age and maturity.
42. Advice and training for all those involved in child protection systems, including the police,
prosecuting authorities and the courts, should underline this approach to enforcement of the law.
Guidance should also emphasize that article 9 of the Convention requires that any separation of the
child from his or her parents must be deemed necessary in the best interests of the child and be
subject to judicial review, in accordance with applicable law and procedures, with all interested
parties, including the child, represented. Where separation is deemed to be justified, alternatives to
placement of the child outside the family should be considered, including removal of the perpetrator,
suspended sentencing, and so on.
43. Where, despite prohibition and positive education and training programmes, cases of corporal
punishment come to light outside the family home - in schools, other institutions and forms of
alternative care, for example - prosecution may be a reasonable response. The threat to the
perpetrator of other disciplinary action or dismissal should also act as a clear deterrent. It is essential
that the prohibition of all corporal punishment and other cruel or degrading punishment, and the
sanctions that may be imposed if it is inflicted, should be well disseminated to children and to all
those working with or for children in all settings. Monitoring disciplinary systems and the treatment
of children must be part of the sustained supervision of all institutions and placements which is
required by the Convention. Children and their representatives in all such placements must have
immediate and confidential access to child-sensitive advice, advocacy and complaints procedures
and ultimately to the courts, with necessary legal and other assistance. In institutions, there should
be a requirement to report and to review any violent incidents.
3. Educational and other measures
44. Article 12 of the Convention underlines the importance of giving due consideration to children's
views on the development and implementation of educational and other measures to eradicate
corporal punishment and other cruel or degrading forms of punishment.
45. Given the widespread traditional acceptance of corporal punishment, prohibition on its own will
not achieve the necessary change in attitudes and practice. Comprehensive awareness-raising of
children's right to protection and of the laws that reflect this right is required. Under article 42 of the
Convention, States undertake to make the principles and provisions of the Convention widely
known, by appropriate and active means, to adults and children alike.
46. In addition, States must ensure that positive, non-violent relationships and education are
consistently promoted to parents, carers, teachers and all others who work with children and
families. The Committee emphasizes that the Convention requires the elimination not only of
corporal punishment but of all other cruel or degrading punishment of children. It is not for the
Convention to prescribe in detail how parents should relate to or guide their children. But the
Convention does provide a framework of principles to guide relationships both within the family,
and between teachers, carers and others and children. Children's developmental needs must be
respected. Children learn from what adults do, not only from what adults say. When the adults to
whom a child most closely relates use violence and humiliation in their relationship with the child,
they are demonstrating disrespect for human rights and teaching a potent and dangerous lesson that
these are legitimate ways to seek to resolve conflict or change behaviour.
47. The Convention asserts the status of the child as an individual person and holder of human
rights. The child is not a possession of parents, nor of the State, nor simply an object of concern. In
this spirit, article 5 requires parents (or, where applicable, members of the extended family or
community) to provide the child with appropriate direction and guidance, in a manner consistent
with his/her evolving capacities, in the exercise by the child of the rights recognized in the
Convention. Article 18, which underlines the primary responsibility of parents, or legal guardians,
for the upbringing and development of the child, states that "the best interests of the child will be
their basic concern". Under article 12, States are required to assure children the right to express their
views freely "in all matters affecting the child", with the views of the child being given due weight
in accordance with age and maturity. This emphasizes the need for styles of parenting, caring and
teaching that respect children's participation rights. In its general comment No. 1 on "The aims of
education", the Committee has emphasized the importance of developing education that is "child-centred, child-friendly and empowering". |16|
48. The Committee notes that there are now many examples of materials and programmes promoting
positive, non-violent forms of parenting and education, addressed to parents, other carers and
teachers and developed by Governments, United Nations agencies, NGOs and others. |17| These can
be appropriately adapted for use in different States and situations. The media can play a very
valuable role in awareness-raising and public education. Challenging traditional dependence on
corporal punishment and other cruel or degrading forms of discipline requires sustained action. The
promotion of non-violent forms of parenting and education should be built into all the points of
contact between the State and parents and children, in health, welfare and educational services,
including early childhood institutions, day-care centres and schools. It should also be integrated into
the initial and in-service training of teachers and all those working with children in care and justice
systems.
49. The Committee proposes that States may wish to seek technical assistance from, among others,
UNICEF and UNESCO concerning awareness-raising, public education and training to promote
non-violent approaches.
4. Monitoring and evaluation
50. The Committee, in its general comment No. 5 on "General measures of implementation for the
Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6)", emphasizes the need for
systematic monitoring by States parties of the realization of children's rights, through the
development of appropriate indicators and the collection of sufficient and reliable data. |18|
51. Therefore States parties should monitor their progress towards eliminating corporal punishment
and other cruel or degrading forms of punishment and thus realizing children's right to protection.
Research using interviews with children, their parents and other carers, in conditions of
confidentiality and with appropriate ethical safeguards, is essential in order to accurately assess the
prevalence of these forms of violence within the family and attitudes to them. The Committee
encourages every State to carry out/commission such research, as far as possible with groups
representative of the whole population, to provide baseline information and then at regular intervals
to measure progress. The results of this research can also provide valuable guidance for the
development of universal and targeted awareness-raising campaigns and training for professionals
working with or for children.
52. The Committee also underlines in general comment No. 5 the importance of independent
monitoring of implementation by, for example, parliamentary committees, NGOs, academic
institutions, professional associations, youth groups and independent human rights institutions (see
also the Committee's general comment No. 2 on "The role of independent national human rights
institutions in the protection and promotion of the rights of the child"). |19| These could all play an
important role in monitoring the realization of children's right to protection from all corporal
punishment and other cruel or degrading forms of punishment.
VI. REPORTING REQUIREMENTS UNDER THE CONVENTION
53. The Committee expects States to include in their periodic reports under the Convention
information on the measures taken to prohibit and prevent all corporal punishment and other cruel
or degrading forms of punishment in the family and all other settings, including on related
awareness-raising activities and promotion of positive, non-violent relationships and on the State's
evaluation of progress towards achieving full respect for children's rights to protection from all
forms of violence. The Committee also encourages United Nations agencies, national human rights
institutions, NGOs and other competent bodies to provide it with relevant information on the legal
status and prevalence of corporal punishment and progress towards its elimination.
Notes:
1. United Nations Secretary-General's Study on Violence against Children, due to report to United
Nations General Assembly, autumn 2006. For details see http://www.violencestudy.org. [Back]
2. Committee on the Rights of the Child, Report on the fourth session, 25 October 1993, CRC/C/20,
para. 176. [Back]
3. All the Committee's concluding observations can be viewed at www.ohchr.org. [Back]
4. The Global Initiative to End All Corporal Punishment of Children provides reports on the legal
status of corporal punishment at www.endcorporalpunishment.org. [Back]
5. Committee on the Rights of the Child, day of general discussion on State violence against
children, Report on the twenty-fifth session, September/October 2000, CRC/C/100, paras. 666-688. [Back]
6. Committee on the Rights of the Child, general comment No. 1, The aims of education, 17 April
2001, CRC/GC/2001/1, para. 8. [Back]
7. Committee on the Rights of the Child, day of general discussion on violence against children
within the family and in schools, Report on the twenty-eighth session, September/October 2001,
CRC/C/111, paras. 701-745. [Back]
8. General Assembly resolution 56/138. [Back]
9. Article 1. [Back]
10. Committee on Economic, Social and Cultural Rights, general comment No. 13, The right to
education (art. 13), 1999, para. 41. [Back]
11. Corporal punishment was condemned in a series of decisions of the European Commission on
Human Rights and judgements of the European Court of Human Rights; see in particular Tyrer v.
UK, 1978; Campbell and Cosans v. UK, 1982; Costello-Roberts v. UK, 1993; A v. UK, 1998.
European Court judgements are available at http://www.echr.coe.int/echr. [Back]
12. European Committee of Social Rights, general observations regarding article 7, paragraph 10,
and article 17. Conclusions XV-2, Vol. 1, General Introduction, p. 26, 2001; the Committee has since
issued conclusions, finding a number of Member States not in compliance because of their failure
to prohibit all corporal punishment in the family and in other settings. In 2005 it issued decisions
on collective complaints made under the charters, finding three States not in compliance because
of their failure to prohibit. For details, see http://www.coe.int/T/E/ Human_Rights/Esc/; also
Eliminating corporal punishment: a human rights imperative for Europe's children, Council of
Europe Publishing, 2005. [Back]
13. Inter-American Court of Human Rights, Advisory Opinion OC-17/2002 of 28 August 2002,
paras. 87 and 91. [Back]
14. African Commission on Human and Peoples' Rights, Curtis Francis Doebbler v. Sudan, Comm.
No. 236/2000 (2003); see para. 42. [Back]
15. For example, in 2002 the Fiji Court of Appeal declared corporal punishment in schools and the
penal system unconstitutional. The judgement declared: "Children have rights no wit inferior to the
rights of adults. Fiji has ratified the Convention on the Rights of the Child. Our Constitution also
guarantees fundamental rights to every person. Government is required to adhere to principles
respecting the rights of all individuals, communities and groups. By their status as children, children
need special protection. Our educational institutions should be sanctuaries of peace and creative
enrichment, not places for fear, ill-treatment and tampering with the human dignity of students" (Fiji
Court of Appeal, NaushadAli v. State, 2002). In 1996, Italy's highest Court, the Supreme Court of
Cassation in Rome, issued a decision that effectively prohibited all parental use of corporal
punishment. The judgement states: "... The use of violence for educational purposes can no longer
be considered lawful. There are two reasons for this: the first is the overriding importance which the
[Italian] legal system attributes to protecting the dignity of the individual. This includes 'minors' who
now hold rights and are no longer simply objects to be protected by their parents or, worse still,
objects at the disposal of their parents. The second reason is that, as an educational aim, the
harmonious development of a child's personality, which ensures that he/she embraces the values of
peace, tolerance and co-existence, cannot be achieved by using violent means which contradict these
goals" (Cambria, Cass, sez. VI, 18 Marzo 1996 [Supreme Court of Cassation, 6th Penal Section, 18
March 1996], Foro It II 1996, 407 (Italy)). Also see South African Constitutional Court (2000)
Christian Education South Africa v. Minister of Education, CCT4/00; 2000 (4) SA757 (CC); 2000
(10) BCLR 1051 (CC), 18 August 2000. [Back]
16. See note 11. [Back]
17. The Committee commends, as one example, UNESCO's handbook, Eliminating corporal
punishment: the way forward to constructive child discipline, UNESCO Publishing, Paris, 2005.
This provides a set of principles for constructive discipline, rooted in the Convention. It also
includes Internet references to materials and programmes available worldwide. [Back]
18. Committee on the Rights of the Child, general comment No. 5 (2003), "General measures of
implementation for the Convention on the Rights of the Child", para. 2. [Back]
19. Committee on the Rights of the Child, general comment No. 2 on "The role of independent
national human rights institutions in the promotion and protection of the rights of the child", 2002. [Back]
Forty-third session (2006)
General comment No. 9:
The rights of children with disabilities
I. INTRODUCTION
A. Why a General Comment on children with disabilities?
1. It is estimated that there are 500-650 million persons with disabilities in the world, approximately
10 per cent of the world population, 150 million of whom are children. More than 80 per cent live
in developing countries with little or no access to services. The majority of children with disabilities
in developing countries remain out of school and are completely illiterate. It is recognized that most
of the causes of disabilities, such as war, illness and poverty, are preventable which also prevent
and/or reduce the secondary impacts of disabilities, often caused by the lack of early/timely
intervention. Therefore, more should be done to create the necessary political will and real
commitment to investigate and put into practice the most effective actions to prevent disabilities
with the participation of all levels of society.
2. The past few decades have witnessed positive focus on persons with disabilities in general and
children in particular. The reason for this new focus is explained partly by the fact that the voice of
persons with disabilities and of their advocates from national and international non governmental
organizations (NGO) is being increasingly heard and partly by the growing attention paid to persons
with disabilities within the framework of the human rights treaties and the United Nations human
rights treaty bodies. These treaty bodies have considerable potential in advancing the rights of
persons with disabilities but they have generally been underused. When adopted in November 1989
the Convention on the Rights of the Child (hereafter "the Convention") was the first human rights
treaty that contained a specific reference to disability (article 2 on non-discrimination) and a separate
article 23 exclusively dedicated to the rights and needs of children with disabilities. Since the
Convention has entered into force (2 September 1990), the Committee on the Rights of the Child
(thereafter "the Committee") has paid sustained and particular attention to disability-based
discrimination |1| while other human rights treaty bodies have paid attention to disability-based
discrimination under "other status" in the context of articles on non-discrimination of their relevant
Convention. In 1994 the Committee on Economic, Social and Cultural Rights issued its general
comment No. 5 on persons with disabilities and stated in paragraph 15 that "The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing,
transport, cultural life, and access to public places and services." The Special Rapporteur on
disability of the United Nations Commission for Social Development was first appointed in 1994
and mandated to monitor of the Standard Rules on the Equalization of Opportunities for Persons
with Disabilities, adopted by the General Assembly at its forty-eighth session in 1993
(A/RES/48/96, Annex), and to advance the status of persons with disabilities throughout the world.
On 6 October 1997 the Committee devoted its day of general discussion to children with disabilities
and adopted a set of recommendations (CRC/C/69, paragraphs 310-339), in which it considered the
possibility of drafting a general comment on children with disabilities. The Committee notes with
appreciation the work of the Ad-Hoc Committee on a Comprehensive and Integral International
Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities,
and that it adopted at its eighth session, held in New York on 25 August 2006, a draft convention
on the rights of persons with disabilities to be submitted to the General Assembly at its sixty-first
session (A/AC.265/2006/4, Annex II).
3. The Committee, in reviewing State party reports, has accumulated a wealth of information on the
status of children with disabilities worldwide and found that in the overwhelming majority of
countries some recommendations had to be made specifically to address the situation of children
with disabilities. The problems identified and addressed have varied from exclusion from decision-making processes to severe discrimination and actual killing of children with disabilities. Poverty
being both a cause and a consequence of disability, the Committee has repeatedly stressed that
children with disabilities and their families have the right to an adequate standard of living,
including adequate food, clothing and housing, and to the continuous improvement of their living
conditions. The question of children with disabilities living in poverty should be addressed by
allocating adequate budgetary resources as well as by ensuring that children with disabilities have
access to social protection and poverty reduction programmes.
4. The Committee has noted that no reservations or declarations have been entered specifically to
article 23 of the Convention by any State party.
5. The Committee also notes that children with disabilities are still experiencing serious difficulties
and facing barriers to the full enjoyment of the rights enshrined in the Convention. The Committee
emphasizes that the barrier is not the disability itself but rather a combination of social, cultural,
attitudinal and physical obstacles which children with disabilities encounter in their daily lives. The
strategy for promoting their rights is therefore to take the necessary action to remove those barriers.
Acknowledging the importance of articles 2 and 23 of the Convention, the Committee states from
the outset that the implementation of the Convention with regards to children with disabilities should
not be limited to these articles.
6. The present general comment is meant to provide guidance and assistance to States parties in their
efforts to implement the rights of children with disabilities, in a comprehensive manner which
covers all the provisions of the Convention. Thus, the Committee will first make some observations
related directly to articles 2 and 23, then it will elaborate on the necessity of paying particular
attention to and including explicitly children with disabilities within the framework of general
measures for the implementation of the Convention. Those observations will be followed by
comments on the meaning and the implementation of the various articles of the Convention
(clustered in accordance with the Committee's practice) for children with disabilities.
B. Definition
7. According to article 1, paragraph 2, of the draft convention on the rights of persons with
disabilities, "Persons with disabilities include those who have long-term physical, mental,
intellectual, or sensory impairments which in interaction with various barriers may hinder their full
and effective participation in society on an equal basis with others." (A/AC.265/2006/4, Annex II)
II. THE KEY PROVISIONS FOR CHILDREN WITH DISABILITIES (arts. 2 and 23)
A. Article 2
8. Article 2 requires States parties to ensure that all children within their jurisdiction enjoy all the
rights enshrined in the Convention without discrimination of any kind. This obligation requires
States parties to take appropriate measures to prevent all forms of discrimination, including on the
ground of disability. This explicit mention of disability as a prohibited ground for discrimination in
article 2 is unique and can be explained by the fact that children with disabilities belong to one of
the most vulnerable groups of children. In many cases forms of multiple discrimination - based on
a combination of factors, i.e. indigenous girls with disabilities, children with disabilities living in
rural areas and so on - increase the vulnerability of certain groups. It has been therefore felt
necessary to mention disability explicitly in the non-discrimination article. Discrimination takes
place - often de facto - in various aspects of the life and development of children with disabilities.
As an example, social discrimination and stigmatization leads to their marginalization and exclusion,
and may even threaten their survival and development if it goes as far as physical or mental violence
against children with disabilities. Discrimination in service provision excludes them from education
and denies them access to quality health and social services. The lack of appropriate education and
vocational training discriminates against them by denying them job opportunities in the future.
Social stigma, fears, overprotection, negative attitudes, misbeliefs and prevailing prejudices against
children with disabilities remain strong in many communities and lead to the marginalization and
alienation of children with disabilities. The Committee shall elaborate on these aspects in the
paragraphs below.
9. In general, States parties in their efforts to prevent and eliminate all forms of discrimination
against children with disabilities should take the following measures:
(a) Include explicitly disability as a forbidden ground for discrimination in constitutional
provisions on non-discrimination and/or include specific prohibition of discrimination on the ground
of disability in specific anti-discrimination laws or legal provisions.
(b) Provide for effective remedies in case of violations of the rights of children with disabilities, and
ensure that those remedies are easily accessible to children with disabilities and their parents and/or
others caring for the child.
(c) Conduct awareness-raising and educational campaigns targeting the public at large and specific
groups of professionals with a view to preventing and eliminating de facto discrimination against
children with disabilities.
10. Girls with disabilities are often even more vulnerable to discrimination due to gender
discrimination. In this context, States parties are requested to pay particular attention to girls with
disabilities by taking the necessary measures, and when needed extra measures, in order to ensure
that they are well protected, have access to all services and are fully included in society.
B. Article 23
11. Paragraph 1 of article 23 should be considered as the leading principle for the implementation
of the Convention with respect to children with disabilities: the enjoyment of a full and decent life
in conditions that ensure dignity, promote self reliance and facilitate active participation in the
community. The measures taken by States parties regarding the realization of the rights of children
with disabilities should be directed towards this goal. The core message of this paragraph is that
children with disabilities should be included in the society. Measures taken for the implementation
of the rights contained in the Convention regarding children with disabilities, for example in the
areas of education and health, should explicitly aim at the maximum inclusion of those children in
society.
12. According to paragraph 2 of article 23 States parties to the Convention recognize the right of the
child with disability to special care and shall encourage and ensure the extension of assistance to the
eligible child and those responsible for his or her care. The assistance has to be appropriate to the
child's condition and the circumstances of the parents or others caring for the child. Paragraph 3 of
article 23 gives further rules regarding the costs of specific measures and precisions as to what the
assistance should try to achieve.
13. In order to meet the requirements of article 23 it is necessary that States parties develop and
effectively implement a comprehensive policy by means of a plan of action which not only aims at
the full enjoyment of the rights enshrined in the Convention without discrimination but which also
ensures that a child with disability and her or his parents and/or others caring for the child do receive
the special care and assistance they are entitled to under the Convention.
14. Regarding the specifics of paragraphs 2 and 3 of article 23, the Committee makes the following
observations:
(a) The provision of special care and assistance is subject to available resources and free
of charge whenever possible. The Committee urges States parties to make special care and
assistance to children with disabilities a matter of high priority and to invest to the maximum extent
of available resources in the elimination of discrimination against children with disabilities and
towards their maximum inclusion in society.
(b) Care and assistance shall be designed to ensure that children with disabilities have effective
access to and benefit from education, training, health care services, recovery services, preparation
for employment and recreation opportunities. The Committee when dealing with specific articles
of the Convention will elaborate on the measures necessary to achieve this.
15. With reference to article 23, paragraph 4, the Committee notes that the international exchange
of information between States parties in the areas of prevention and treatment is quite limited. The
Committee recommends that States parties take effective, and where appropriate targeted, measures
for an active promotion of information as envisaged by article 23, paragraph 4, in order to enable
States parties to improve their capabilities and skills in the areas of prevention and treatment of
disabilities of children.
16. It is often not clear how and to which degree the needs of developing countries are taken into
account as required by article 23, paragraph 4. The Committee strongly recommends States parties
to ensure that, within the framework of bilateral or multilateral development assistance, particular
attention be paid to children with disabilities and their survival and development in accordance with
the provisions of the Convention, for example, by developing and implementing special programmes
aiming at their inclusion in society and allocating earmarked budgets to that effect. States parties
are invited to provide information in their reports to the Committee on the activities and results of
such international cooperation.
III. GENERAL MEASURES OF IMPLEMENTATION
(arts. 4, 42 and 44 (6)) |2|
A. Legislation
17. In addition to the legislative measures recommended with regard to non-discrimination (see
paragraph 9 above), the Committee recommends that States parties undertake a comprehensive
review of all domestic laws and related regulations in order to ensure that all provisions of the
Convention are applicable to all children, including children with disabilities who should be
mentioned explicitly, where appropriate. National laws and regulations should contain clear and
explicit provisions for the protection and exercise of the specific rights of children with disabilities,
in particular those enshrined in article 23 of the Convention.
B. National plans of action and policies
18. The need for a national plan of action that integrates all the provisions of the Convention is a
well-recognized fact and has often been a recommendation made by the Committee to States parties.
Plans of action must be comprehensive, including plans and strategies for children with disabilities,
and should have measurable outcomes. The draft convention on the rights of persons with
disabilities, in its article 4, paragraph 1 c, emphasizes the importance of inclusion of this aspect
stating that States parties undertake "to take into account the protection and promotion of the human
rights of persons with disabilities in all policies and programmes" (A/AC.265/2006/4, annex II). It
is also essential that all programmes be adequately supplied with financial and human resources and
equipped with built-in monitoring mechanisms, for example, indicators allowing accurate outcome
measurements. Another factor that should not be overlooked is the importance of including all
children with disabilities in policies and programmes. Some States parties have initiated excellent
programmes, but failed to include all children with disabilities.
C. Data and statistics
19. In order to fulfil their obligations, it is necessary for States parties to set up and develop
mechanisms for collecting data which are accurate, standardized and allow disaggregation, and
which reflect the actual situation of children with disabilities. The importance of this issue is often
overlooked and not viewed as a priority despite the fact that it has an impact not only on the
measures that need to be taken in terms of prevention but also on the distribution of very valuable
resources needed to fund programmes. One of the main challenges in obtaining accurate statistics
is the lack of a widely accepted clear definition for disabilities. States parties are encouraged to
establish an appropriate definition that guarantees the inclusion of all children with disabilities so
that children with disabilities may benefit from the special protection and programmes developed
for them. Extra efforts are often needed to collect data on children with disabilities because they are
often hidden by their parents or others caring for the child.
D. Budget
20. Allocation of budget: in the light of article 4 "... States parties shall undertake such measures to
the maximum extent of their available resources ..." Although the Convention does not make a
specific recommendation regarding the most appropriate percentage of the State budget that should
be dedicated to services and programmes for children, it does insist that children should be a
priority. The implementation of this right has been a concern to the Committee since many States
parties not only do not allocate sufficient resources but have also reduced the budget allocated to
children over the years. This trend has many serious implications especially for children with
disabilities who often rank quite low, or even not at all, on priority lists. For example, if a State party
is failing to allocate sufficient funds to ensure compulsory and free quality education for all children,
it will be unlikely to allocate funds to train teachers for children with disabilities or to provide for
the necessary teaching aids and transportation for children with disabilities. Decentralization and
privatization of services are now means of economic reform. However, it should not be forgotten
that it is the State Party's ultimate responsibility to oversee that adequate funds are allocated to
children with disabilities along with strict guidelines for service delivery. Resources allocated to
children with disabilities should be sufficient - and earmarked so that they are not used for other
purposes - to cover all their needs, including programmes established for training professionals
working with children with disabilities such as teachers, physiotherapists and policymakers;
education campaigns; financial support for families; income maintenance; social security; assistive
devices; and related services. Furthermore, funding must also be ensured for other programmes
aimed at including children with disabilities into mainstream education, inter alia by renovating
schools to render them physically accessible to children with disabilities.
E. Coordination body: "Focal point for disabilities"
21. Services for children with disabilities are often delivered by various governmental and non-governmental institutions, and more often than not, these services are fragmented and not
coordinated which result in overlapping of functions and gaps in provisions. Therefore, the setting
up of an appropriate coordinating mechanism becomes essential. This body should be multisectoral,
including all organizations public or private. It must be empowered and supported from the highest
possible levels of Government to allow it to function at its full potential. A coordination body for
children with disabilities, as part of a broader coordination system for the rights of the child or a
national coordination system for persons with disabilities, would have the advantage of working
within an already established system, provided this system is functioning adequately and capable
of devoting the adequate financial and human resources necessary. On the other hand, a separate
coordination system may help to focus attention on children with disabilities.
F. International cooperation and technical assistance
22. In order to make information among States parties freely accessible and to cultivate an
atmosphere of knowledge-sharing concerning, inter alia, the management and rehabilitation of
children with disabilities, States parties should recognize the importance of international cooperation
and technical assistance. Particular attention should be paid to developing countries that need
assistance in setting up and/or funding programmes that protect and promote the rights of children
with disabilities. These countries are experiencing increasing difficulties in mobilizing the adequate
resources to meet the pressing needs of persons with disabilities and would urgently need assistance
in the prevention of disability, the provision of services and rehabilitation, and in the equalization
of opportunities. However, in order to respond to these growing needs, the international community
should explore new ways and means of raising funds, including substantial increase of resources,
and take the necessary follow-up measures for mobilizing resources. Therefore, voluntary
contributions from Governments, increased regional and bilateral assistance as well as contributions
from private sources should also be encouraged. UNICEF and the World Health Organization
(WHO) have been instrumental in helping developing countries set up and implement specific
programmes for children with disabilities. The process of knowledge exchange is also valuable in
sharing updated medical knowledge and good practices, such as early identification and community-based approaches to early intervention and support to families, and addressing common challenges.
23. Countries that have endured, or continue to endure, internal or foreign conflict, during which
land mines were laid, face a particular challenge. States parties are often not privy to plans of the
sites where the land mines and unexploded ordnance were planted and the cost of mine clearance
is very high. The Committee emphasizes the importance of international cooperation in accordance
with the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction, in order to prevent injuries and deaths caused by
landmines and unexploded ordnance that remain in place. In this regard the Committee recommends
that States parties closely cooperate with a view to completely removing all landmines and
unexploded ordnance in areas of armed conflict and/or previous armed conflict.
G. Independent monitoring
24. Both the Convention and the Standard Rules on the Equalization of Opportunities for Persons
with Disabilities recognize the importance of the establishment of an appropriate monitoring
system. |3| The Committee has very often referred to "the Paris Principles" (A/RES/48/134) as the
guidelines which national human rights institutions should follow (see the Committee's general
comment No. 2 (2002) on the role of independent national human rights institutions in the promotion
and protection of the rights of the child). National human rights institutions can take many shapes
or forms such as an Ombudsman or a Commissioner and may be broad-based or specific. Whatever
mechanism is chosen, it must be:
(a) Independent and provided with adequate human and financial resources;
(b) Well known to children with disabilities and their caregivers;
(c) Accessible not only in the physical sense but also in a way that allows children with disabilities
to send in their complaints or issues easily and confidentially; and
(d) It must have the appropriate legal authority to receive, investigate and address the complaints
of children with disabilities in a manner sensitive to both their childhood and to their disabilities.
H. Civil society
25. Although caring for children with disabilities is an obligation of the State, NGOs often carry out
these responsibilities without the appropriate support, funding or recognition from Governments.
States parties are therefore encouraged to support and cooperate with NGOs enabling them to
participate in the provision of services for children with disabilities and to ensure that they operate
in full compliance with the provisions and principles of the Convention. In this regard the
Committee draws the attention of States parties to the recommendations adopted on its day of
general discussion on the private sector as a service provider, held on 20 September 2002
(CRC/C/121, paras. 630-653).
I. Dissemination of knowledge and training of professionals
26. Knowledge of the Convention and its specific provisions devoted to children with disabilities
is a necessary and powerful tool to ensure the realization of these rights. States parties are
encouraged to disseminate knowledge by, inter alia, conducting systematic awareness-raising
campaigns, producing appropriate material, such as a child friendly version of the Convention in
print and Braille, and using the mass media to foster positive attitudes towards children with
disabilities.
27. As for professionals working with and for children with disabilities, training programmes must
include targeted and focused education on the rights of children with disabilities as a prerequisite
for qualification. These professionals include but are not limited to policymakers, judges, lawyers,
law enforcement officers, educators, health workers, social workers and media staff among others.
IV. GENERAL PRINCIPLES
Article 2 - Non-discrimination
28. See paragraphs 8-10 above. Article 3 - Best interests of the child
29. "In all actions concerning children.. .the best interests of the child shall be a primary
consideration". The broad nature of this article aims at covering all aspects of care and protection
for children in all settings. It addresses legislators who are entrusted with setting the legal
framework for protecting the rights of children with disabilities as well as the decisions-making
processes concerning children with disabilities. Article 3 should be the basis on which programmes
and policies are set and it should be duly taken into account in every service provided for children
with disabilities and any other action affecting them.
30. The best interests of the child is of particular relevance in institutions and other facilities that
provide services for children with disabilities as they are expected to conform to standards and
regulations and should have the safety, protection and care of children as their primary
consideration, and this consideration should outweigh any other and under all circumstances, for
example, when allocating budgets.
Article 6 - Right to life, survival and development
31. The inherent right to life, survival and development is a right that warrants particular attention
where children with disabilities are concerned. In many countries of the world children with
disabilities are subject to a variety of practices that completely or partially compromise this right.
In addition to being more vulnerable to infanticide, some cultures view a child with any form of
disability as a bad omen that may "tarnish the family pedigree" and, accordingly, a certain
designated individual from the community systematically kills children with disabilities. These
crimes often go unpunished or perpetrators receive reduced sentences. States parties are urged to
undertake all the necessary measures required to put an end to these practices, including raising
public awareness, setting up appropriate legislation and enforcing laws that ensure appropriate
punishment to all those who directly or indirectly violate the right to life, survival and development
of children with disabilities.
Article 12 - Respect for the views of the child
32. More often than not, adults with and without disabilities make policies and decisions related to
children with disabilities while the children themselves are left out of the process. It is essential that
children with disabilities be heard in all procedures affecting them and that their views be respected
in accordance with their evolving capacities. In order for this principle to be respected, children
should be represented in various bodies such as parliament, committees and other forums where they
may voice views and participate in the making of decisions that affect them as children in general
and as children with disabilities specifically. Engaging children in such a process not only ensures
that the policies are targeted to their needs and desires, but also functions as a valuable tool for
inclusion since it ensures that the decision-making process is a participatory one. Children should
be provided with whatever mode of communication they need to facilitate expressing their views.
Furthermore, States parties should support the training for families and professionals on promoting
and respecting the evolving capacities of children to take increasing responsibilities for decision-making in their own lives.
33. Children with disabilities often require special services in health and education to allow them
to achieve their fullest potential and these are further discussed in the relevant paragraphs below.
However it should be noted that spiritual, emotional and cultural development and well-being of
children with disabilities are very often overlooked. Their participation in events and activities
catering to these essential aspects of any child's life is either totally lacking or minimal.
Furthermore, when their participation is invited, it is often limited to activities specifically designed
for and targeted at children with disabilities. This practice only leads to further marginalization of
children with disabilities and increases their feelings of isolation. Programmes and activities
designed for the child's cultural development and spiritual well-being should involve and cater to
both children with and without disabilities in an integrated and participatory fashion.
V. CIVIL RIGHTS AND FREEDOMS (arts. 7, 8, 13-17, and 37 a)
34. The right to name and nationality, preservation of identity, freedom of expression, freedom of
thought, conscience and religion, freedom of association and peaceful assembly, the right to privacy
and the right not to be subjected to torture or other cruel inhuman or degrading treatment or
punishment and not to be unlawfully deprived of liberty are all universal civil rights and freedoms
which must be respected, protected and promoted for all, including children with disabilities.
Particular attention should be paid here on areas where the rights of children with disabilities are
more likely to be violated or where special programmes are needed for their protection.
A. Birth registration
35. Children with disabilities are disproportionately vulnerable to non-registration at birth. Without
birth registration they are not recognized by law and become invisible in government statistics. Non-registration has profound consequences for the enjoyment of their human rights, including the lack
of citizenship and access to social and health services and to education. Children with disabilities
who are not registered at birth are at greater risk of neglect, institutionalization, and even death.
36. In the light of article 7 of the Convention, the Committee recommends that States parties adopt
all appropriate measures to ensure the registration of children with disabilities at birth. Such
measures should include developing and implementing an effective system of birth registration,
waiving registration fees, introducing mobile registration offices and, for children who are not yet
registered, providing registration units in schools. In this context, States parties should ensure that
the provisions of article 7 are fully enforced in conformity with the principles of non-discrimination
(art. 2) and of the best interests of the child (art. 3).
B. Access to appropriate information and mass media
37. Access to information and means of communication, including information and communication
technologies and systems, enables children with disabilities to live independently and participate
fully in all aspects of life. Children with disabilities and their caregivers should have access to
information concerning their disabilities so that they can be adequately educated on the disability,
including its causes, management and prognosis. This knowledge is extremely valuable as it does
not only enable them to adjust and live better with their disabilities, but also allows them to be more
involved in and to make informed decisions about their own care. Children with disabilities should
also be provided with the appropriate technology and other services and/or languages, e.g. Braille
and sign language, which would enable them to have access to all forms of media, including
television, radio and printed material as well as new information and communication technologies
and systems, such as the Internet.
38. On the other hand, States parties are required to protect all children, including children with
disabilities from harmful information, especially pornographic material and material that promotes
xenophobia or any other form of discrimination and could potentially reinforce prejudices.
C. Accessibility to public transportation and facilities
39. The physical inaccessibility of public transportation and other facilities, including governmental
buildings, shopping areas, recreational facilities among others, is a major factor in the
marginalization and exclusion of children with disabilities and markedly compromises their access
to services, including health and education. Although this provision may be mostly realized in
developed countries, it remains largely un-addressed in the developing world. All States parties are
urged to set out appropriate policies and procedures to make public transportation safe, easily
accessible to children with disabilities, and free of charge, whenever possible, taking into account
the financial resources of the parents or others caring for the child.
40. All new public buildings should comply with international specifications for access of persons
with disabilities and existing public buildings, including schools, health facilities, governmental
buildings, shopping areas, undergo necessary alterations that make them as accessible as possible.
VI. FAMILY ENVIRONMENT AND ALTERNATIVE CARE (arts. 5, 18 (1-2), 9-11, 19-21, 25, 27 (4), and 39)
A. Family support and parental responsibilities
41. Children with disabilities are best cared for and nurtured within their own family environment
provided that the family is adequately provided for in all aspects. Such support to families includes
education of parent/s and siblings, not only on the disability and its causes but also on each child's
unique physical and mental requirements; psychological support that is sensitive to the stress and
difficulties imposed on families of children with disabilities; education on the family's common
language, for example sign language, so that parents and siblings can communicate with family
members with disabilities; material support in the form of special allowances as well as consumable
supplies and necessary equipment, such as special furniture and mobility devices that is deemed
necessary for the child with a disability to live a dignified, self-reliant lifestyle, and be fully included
in the family and community. In this context, support should also be extended to children who are
affected by the disabilities of their caregivers. For example, a child living with a parent or other
caregiver with disabilities should receive the support that would protect fully his or her rights and
allow him or her to continue to live with this parent whenever it is in his or her best interests.
Support services should also include different forms of respite care, such as care assistance in the
home and day-care facilities directly accessible at community level. Such services enable parents
to work, as well as relieve stress and maintain healthy family environments.
B. Violence, abuse and neglect
42. Children with disabilities are more vulnerable to all forms of abuse be it mental, physical or
sexual in all settings, including the family, schools, private and public institutions, inter alia
alternative care, work environment and community at large. It is often quoted that children with
disabilities are five times more likely to be victims of abuse. In the home and in institutions, children
with disabilities are often subjected to mental and physical violence and sexual abuse, and they are
also particularly vulnerable to neglect and negligent treatment since they often present an extra
physical and financial burden on the family. In addition, the lack of access to a functional complaint
receiving and monitoring mechanism is conducive to systematic and continuing abuse. School
bullying is a particular form of violence that children are exposed to and more often than not, this
form of abuse targets children with disabilities. Their particular vulnerability may be explained inter
alia by the following main reasons:
(a) Their inability to hear, move, and dress, toilet, and bath independently increases their
vulnerability to intrusive personal care or abuse;
(b) Living in isolation from parents, siblings, extended family and friends increases the likelihood
of abuse;
(c) Should they have communication or intellectual impairments, they may be ignored, disbelieved
or misunderstood should they complain about abuse;
(d) Parents or others taking care of the child may be under considerable pressure or stress because
of physical, financial and emotional issues in caring for their child. Studies indicate that those under
stress may be more likely to commit abuse;
(e) Children with disabilities are often wrongly perceived as being non-sexual and not having an
understanding of their own bodies and, therefore, they can be targets of abusive people, particularly
those who base abuse on sexuality.
43. In addressing the issue of violence and abuse, States parties are urged to take all necessary
measures for the prevention of abuse of and violence against children with disabilities, such as:
(a) Train and educate parents or others caring for the child to understand the risks and
detect the signs of abuse of the child;
(b) Ensure that parents are vigilant about choosing caregivers and facilities for their children and
improve their ability to detect abuse;
(c) Provide and encourage support groups for parents, siblings and others taking care of the child
to assist them in caring for their children and coping with their disabilities;
(d) Ensure that children and caregivers know that the child is entitled as a matter of right to be
treated with dignity and respect and they have the right to complain to appropriate authorities if
those rights are breached;
(e) Ensure that schools take all measures to combat school bullying and pay particular attention to
children with disabilities providing them with the necessary protection while maintaining their
inclusion into the mainstream education system;
(f) Ensure that institutions providing care for children with disabilities are staffed with specially
trained personnel, subject to appropriate standards, regularly monitored and evaluated, and have
accessible and sensitive complaint mechanisms;
(g) Establish an accessible, child-sensitive complaint mechanism and a functioning monitoring
system based on the Paris Principles (see paragraph 24 above);
(h) Take all necessary legislative measures required to punish and remove perpetrators from the
home ensuring that the child is not deprived of his or her family and continue to live in a safe and
healthy environment;
(i) Ensure the treatment and re-integration of victims of abuse and violence with a special focus on
their overall recovery programmes.
44. In this context the Committee would also like to draw States parties' attention to the report of
the independent expert for the United Nations study on violence against children (A/61/299) which
refers to children with disabilities as a group of children especially vulnerable to violence. The
Committee encourages States parties to take all appropriate measures to implement the overarching
recommendations and setting-specific recommendations contained in this report.
C. Family-type alternative care
45. The role of the extended family, which is still a main pillar of childcare in many communities
and is considered one of the best alternatives for childcare, should be strengthened and empowered
to support the child and his or her parents or others taking care of the child.
46. Recognizing that the foster family is an accepted and practiced form of alternative care in many
States parties, it is nevertheless a fact that many foster families are reluctant to take on the care of
a child with disability as children with disabilities often pose a challenge in the extra care they may
need and the special requirements in their physical, psychological and mental upbringing.
Organizations that are responsible for foster placement of children must, therefore, conduct the
necessary training and encouragement of suitable families and provide the support that will allow
the foster family to appropriately take care of the child with disability.
D. Institutions
47. The Committee has often expressed its concern at the high number of children with disabilities
placed in institutions and that institutionalization is the preferred placement option in many
countries. The quality of care provided, whether educational, medical or rehabilitative, is often much
inferior to the standards necessary for the care of children with disabilities either because of lack of
identified standards or lack of implementation and monitoring of these standards. Institutions are
also a particular setting where children with disabilities are more vulnerable to mental, physical,
sexual and other forms of abuse as well as neglect and negligent treatment (see paragraphs 42-44
above). The Committee therefore urges States parties to use the placement in institution only as a
measure of last resort, when it is absolutely necessary and in the best interests of the child. It
recommends that the States parties prevent the use of placement in institution merely with the goal
of limiting the child's liberty or freedom of movement. In addition, attention should be paid to
transforming existing institutions, with a focus on small residential care facilities organized around
the rights and needs of the child, to developing national standards for care in institutions, and to
establishing rigorous screening and monitoring procedures to ensure effective implementation of
these standards.
48. The Committee is concerned at the fact that children with disabilities are not often heard in
separation and placement processes. In general, decision-making processes do not attach enough
weight to children as partners even though these decisions have a far-reaching impact on the child's
life and future. Therefore, the Committee recommends that States parties continue and strengthen
their efforts to take into consideration the views of children with disabilities and facilitate their
participation in all matters affecting them within the evaluation, separation and placement process
in out-of-home care, and during the transition process. The Committee also emphasizes that children
should be heard throughout the protection measure process, before making the decision as well as
during and after its implementation. In this context, the Committee draws the attention of the States
parties to the Committee's recommendations adopted on its day of general discussion on children
without parental care, held on 16 September 2005 (CRC/C/153, paragraphs 636-689).
49. In addressing institutionalization, States parties are therefore urged to set up programmes for de-institutionalization of children with disabilities, re-placing them with their families, extended
families or foster care system. Parents and other extended family members should be provided with
the necessary and systematic support/training for including their child back into their home
environment.
E. Periodic review of placement
50. Whatever form of placement chosen for children with disabilities by the competent authorities,
it is essential that a periodic review of the treatment provided to the child, and all other
circumstances relevant to his or her placement, is carried out to monitor his or her well being.
VII. BASIC HEALTH AND WELFARE
(arts. 6, 18 (3), 23, 24, 26, and 27 (1-3))
A. Right to health
51. Attainment of the highest possible standard of health as well as access and affordability of
quality healthcare is an inherent right for all children. Children with disabilities are often left out
because of several challenges, including discrimination, inaccessibility due to the lack of
information and/or financial resources, transportation, geographic distribution and physical access
to health care facilities. Another factor is the absence of targeted health care programmes that
address the specific needs of children with disabilities. Health policies should be comprehensive and
address early detection of disabilities, early intervention, including psychological and physical
treatment, rehabilitation including physical aids, for example limb prosthesis, mobility devices,
hearing aids and visual aids.
52. It is important to emphasize that health services should be provided within the same public
health system that provides for children with no disabilities, free of charge, whenever possible, and
as updated and modernized as possible. The importance of community-based assistance and
rehabilitation strategies should be emphasized when providing health services for children with
disabilities. States parties must ensure that health professionals working with children with
disabilities are trained to the highest possible standard and practice based on a child-centred
approach. In this respect, many States parties would greatly benefit from international cooperation
with international organizations as well as other States parties.
B. Prevention
53. Causes of disabilities are multiple and, therefore, the quality and level of prevention vary.
Inherited diseases that often cause disabilities can be prevented in some societies that practice
consanguineous marriages and under such circumstances public awareness and appropriate
preconception testing would be recommended. Communicable diseases are still the cause of many
disabilities around the world and immunization programmes need to be stepped up aiming to achieve
universal immunization against all preventable communicable diseases. Poor nutrition has a long-term impact upon children's development and it can lead to disabilities, such as blindness caused by
Vitamin A deficiency. The Committee recommends that States parties introduce and strengthen
prenatal care for children and ensure adequate quality of the assistance given during the delivery.
It also recommends that States parties provide adequate post-natal health-care services and develop
campaigns to inform parents and others caring for the child about basic child healthcare and
nutrition. In this regard, the Committee also recommends that the States parties continue to
cooperate and seek technical assistance with, among others, WHO and UNICEF.
54. Domestic and road traffic accidents are a major cause of disability in some countries and policies
of prevention need to be established and implemented such as the laws on seat belts and traffic
safety. Lifestyle issues, such as alcohol and drug abuse during pregnancy, are also preventable
causes of disabilities and in some countries the fetal alcohol syndrome presents a major cause for
concern. Public education, identification and support for pregnant mothers who may be abusing such
substances are just some of the measures that may be taken to prevent such causes of disability
among children. Hazardous environment toxins also contribute to the causes of many disabilities.
Toxins, such as lead, mercury, asbestos, etc., are commonly found in most countries. Countries
should establish and implement policies to prevent dumping of hazardous materials and other means
of polluting the environment. Furthermore, strict guidelines and safeguards should also be
established to prevent radiation accidents.
55. Armed conflicts and their aftermath, including availability and accessibility of small arms and
light weapons, are also major causes of disabilities. States parties are obliged to take all necessary
measures to protect children from the detrimental effects of war and armed violence and to ensure
that children affected by armed conflict have access to adequate health and social services, including
psychosocial recovery and social reintegration. In particular, the Committee stresses the importance
of educating children, parents and the public at large about the dangers of landmines and unexploded
ordnance in order to prevent injury and death. It is crucial that States parties continue to locate
landmines and unexploded ordnance, take measures to keep children away from suspected areas,
and strengthen their mine clearance activities and, when appropriate, seek the necessary technical
and financial support within a framework of international cooperation, including from United
Nations agencies. (See also paragraph 23 above on landmines and unexploded ordnance and
paragraph 78 below on armed conflicts under special protection measures.)
C. Early identification
56. Very often, disabilities are detected quite late in the child's life, which deprives him or her of
effective treatment and rehabilitation. Early identification requires high awareness among health
professionals, parents, teachers as well as other professionals working with children. They should
be able to identify the earliest signs of disability and make the appropriate referrals for diagnosis and
management. Therefore, the Committee recommends that States parties establish systems of early
identification and early intervention as part of their health services, together with birth registration
and procedures for following the progress of children identified with disabilities at an early age.
Services should be both community- and home-based, and easy to access. Furthermore, links should
be established between early intervention services, pre-schools and schools to facilitate the smooth
transition of the child.
57. Following identification, the systems in place must be capable of early intervention including
treatment and rehabilitation providing all necessary devices that enable children with disabilities to
achieve their full functional capacity in terms of mobility, hearing aids, visual aids, and prosthetics
among others. It should also be emphasized that these provisions should be offered free of cost,
whenever possible, and the process of acquiring such services should be efficient and simple
avoiding long waits and bureaucracies.
D. Multidisciplinary care
58. Children with disabilities very often have multiple health issues that need to be addressed in a
team approach. Very often, many professionals are involved in the care of the child, such as
neurologists, psychologists, psychiatrists, orthopaedic surgeons and physiotherapists among others.
Ideally these professionals should collectively identify a plan of management for the child with
disability that would ensure the most efficient healthcare is provided.
E. Adolescent health and development
59. The Committee notes that children with disabilities are, particularly during their adolescence,
facing multiple challenges and risks in the area of establishing relationships with peers and
reproductive health. Therefore, the Committee recommends that States parties provide adolescents
with disabilities with adequate, and where appropriate, disability specific information, guidance and
counselling and fully take into account the Committee's general comments No. 3 (2003) on
HIV/AIDS and the rights of the child and No. 4 (2003) on adolescent health and development in the
context of the Convention on the Rights of the Child.
60. The Committee is deeply concerned about the prevailing practice of forced sterilisation of
children with disabilities, particularly girls with disabilities. This practice, which still exists,
seriously violates the right of the child to her or his physical integrity and results in adverse life-long
physical and mental health effects. Therefore, the Committee urges States parties to prohibit by law
the forced sterilisation of children on grounds of disability.
F. Research
61. Causes, prevention and management of disabilities do not receive the much needed attention on
national and international research agendas. States parties are encouraged to award this issue priority
status ensuring funding and monitoring of disability focused research paying particular attention to
ethical implications.
VIII. EDUCATION AND LEISURE
(arts. 28, 29 and 31)
A. Quality education
62. Children with disabilities have the same right to education as all other children and shall enjoy
this right without any discrimination and on the basis of equal opportunity as stipulated in the
Convention. |4| For this purpose, effective access of children with disabilities to education has to be
ensured to promote "the development of the child's personality, talents and mental and physical
abilities to their fullest potential (see articles 28 and 29 of the Convention and the Committee's
general comment No. 1 (2001) on the aims of education). The Convention recognizes the need for
modification to school practices and for training of regular teachers to prepare them to teach children
with diverse abilities and ensure that they achieve positive educational outcomes.
63. As children with disabilities are very different from each other, parents, teachers and other
specialized professionals have to help each individual child to develop his or her ways and skills of
communication, language, interaction, orientation and problem-solving which best fit the potential
of this child. Everybody, who furthers the child's skills, abilities and self-development, has to
precisely observe the child's progress and carefully listen to the child's verbal and emotional
communication in order to support education and development in a well-targeted and most
appropriate manner.
B. Self-esteem and self-reliance
64. It is crucial that the education of a child with disability includes the strengthening of positive
self-awareness, making sure that the child feels he or she is respected by others as a human being
without any limitation of dignity. The child must be able to observe that others respect him or her
and recognize his or her human rights and freedoms. Inclusion of the child with disability in the
groups of children of the classroom can show the child that he or she has recognized identity and
belongs to the community of learners, peers, and citizens. Peer support enhancing self-esteem of
children with disabilities should be more widely recognized and promoted. Education also has to
provide the child with empowering experience of control, achievement, and success to the maximum
extent possible for the child.
C. Education in the school system
65. Early childhood education is of particular relevance for children with disabilities as often their
disabilities and special needs are first recognized in these institutions. Early intervention is of utmost
importance to help children to develop their full potential. If a child is identified as having a
disability or developmental delay at an early stage, the child has much better opportunities to benefit
from early childhood education which should be designed to respond to her or his individual needs.
Early childhood education provided by the State, the community or civil society institutions can
provide important assistance to the well-being and development of all children with disabilities (see
the Committee's general comment No. 7 (2005) on implementing child rights in early childhood).
Primary education, including primary school and, in many States parties, also secondary school, has
to be provided for children with disabilities free of costs. All schools should be without
communicational barriers as well as physical barriers impeding the access of children with reduced
mobility. Also higher education, accessible on the basis of capacities, has to be accessible for
qualified adolescents with disabilities. In order to fully exercise their right to education, many
children need personal assistance, in particular, teachers trained in methodology and techniques,
including appropriate languages, and other forms of communication, for teaching children with a
diverse range of abilities capable of using child-centred and individualised teaching strategies, and
appropriate and accessible teaching materials, equipment and assistive devices, which States parties
should provide to the maximum extent of available resources.
D. Inclusive education
66. Inclusive education |5| should be the goal of educating children with disabilities. The manner and
form of inclusion must be dictated by the individual educational needs of the child, since the
education of some children with disabilities requires a kind of support which may not be readily
available in the regular school system. The Committee notes the explicit commitment towards the
goal of inclusive education contained in the draft convention on the rights of persons with
disabilities and the obligation for States to ensure that persons including children with disabilities
are not excluded from the general education system on the basis of disability and that they receive
the support required, within the general education system, to facilitate their effective education. It
encourages States parties which have not yet begun a programme towards inclusion to introduce the
necessary measures to achieve this goal. However, the Committee underlines that the extent of
inclusion within the general education system may vary. A continuum of services and programme
options must be maintained in circumstances where fully inclusive education is not feasible to
achieve in the immediate future.
67. The movement towards inclusive education has received much support in recent years. However,
the term inclusive may have different meanings. At its core, inclusive education is a set of values,
principles and practices that seeks meaningful, effective, and quality education for all students, that
does justice to the diversity of learning conditions and requirements not only of children with
disabilities, but for all students. This goal can be achieved by different organizational means which
respect the diversity of children. Inclusion may range from full-time placement of all students with
disabilities into one regular classroom or placement into the regular class room with varying degree
of inclusion, including a certain portion of special education. It is important to understand that
inclusion should not be understood nor practiced as simply integrating children with disabilities into
the regular system regardless of their challenges and needs. Close cooperation among special
educators and regular educators is essential. Schools' curricula must be re-evaluated and developed
to meet the needs of children with and without disabilities. Modification in training programmes for
teachers and other personnel involved in the educational system must be achieved in order to fully
implement the philosophy of inclusive education.
E. Career education and vocational training
68. Education for career development and transition is for all persons with disabilities regardless of
their age. It is imperative to begin preparation at an early age because career development is seen
as a process that begins early and continues throughout life. Developing career awareness and
vocational skills as early as possible, beginning in the elementary school, enables children to make
better choices later in life in terms of employment. Career education in the elementary school does
not mean using young children to perform labour that ultimately opens the door for economic
exploitation. It begins with students choosing goals according to their evolving capacities in the
early years. It should then be followed by a functional secondary school curriculum that offers
adequate skills and access to work experience, under systematic coordination and monitoring
between the school and the work place.
69. Career development and vocational skills should be included in the school curriculum. Career
awareness and vocational skills should be incorporated into the years of compulsory education. In
countries where compulsory education does not go beyond the elementary school years, vocational
training beyond elementary school should be mandatory for children with disabilities. Governments
must establish policies and allocate sufficient funds for vocational training.
F. Recreation and cultural activities
70. The Convention stipulates in article 31 the right of the child to recreation and cultural activities
appropriate to the age of the child. This article should be interpreted to include mental,
psychological as well as the physical ages and capabilities of the child. Play has been recognized
as the best source of learning various skills, including social skills. The attainment of full inclusion
of children with disabilities in the society is realized when children are given the opportunity, places,
and time to play with each other (children with disabilities and no disabilities). Training for
recreation, leisure and play should be included for school-aged children with disabilities.
71. Children with disabilities should be provided with equal opportunities to participate in various
cultural and arts activities as well as sports. These activities must be viewed as both medium of
expression and medium of realizing self-satisfying, quality of life.
G. Sports
72. Competitive and non-competitive sports activities must be designed to include children with
disabilities in an inclusive manner, whenever possible. That is to say, a child with a disability who
is able to compete with children with no disability should be encouraged and supported to do so. But
sports are an area where, because of the physical demands of the sport, children with disabilities will
often need to have exclusive games and activities where they can compete fairly and safely. It must
be emphasized though that when such exclusive events take place, the media must play its role
responsibly by giving the same attention as it does to sports for children with no disabilities.
IX. SPECIAL PROTECTION MEASURES
(arts. 22, 38, 39, 40, 37 b-d, and 32-36)
A. Juvenile justice system
73. In the light of article 2 States parties have the obligation to ensure that children with disabilities
who are in conflict with the law (as described in article 40, paragraph 1) will be protected not only
by the provisions of the Convention which specifically relate to juvenile justice (arts. 40, 37 and 39)
but by all other relevant provisions and guarantees contained in the Convention, for example in the
area of health care and education. In addition, States parties should take where necessary specific
measures to ensure that children with disabilities de facto are protected by and do benefit from the
rights mentioned above.
74. With reference to the rights enshrined in article 23 and given the high level of vulnerability of
children with disabilities, the Committee recommends - in addition to the general recommendation
made in paragraph 73 above - that the following elements of the treatment of children with
disabilities (allegedly) in conflict with the law be taken into account:
(a) A child with disability who comes in conflict with the law should be interviewed using
appropriate languages and otherwise dealt with by professionals such as police officers,
attorneys/advocates/social workers, prosecutors and/or judges, who have received proper training
in this regard;
(b) Governments should develop and implement alternative measures with a variety and a flexibility
that allow for an adjustment of the measure to the individual capacities and abilities of the child in
order to avoid the use of judicial proceedings. Children with disabilities in conflict with the law
should be dealt with as much as possible without resorting to formal/legal procedures. Such
procedures should only be considered when necessary in the interest of public order. In those cases
special efforts have to be made to inform the child about the juvenile justice procedure and his or
her rights therein;
(c) Children with disabilities in conflict with the law should not be placed in a regular juvenile
detention centre by way of pre-trial detention nor by way of a punishment. Deprivation of liberty
should only be applied if necessary with a view to providing the child with adequate treatment for
addressing his or her problems which have resulted in the commission of a crime and the child
should be placed in an institution that has the specially trained staff and other facilities to provide
this specific treatment. In making such decisions the competent authority should make sure that the
human rights and legal safeguards are fully respected.
B. Economic exploitation
75. Children with disabilities are particularly vulnerable to different forms of economic exploitation,
including the worst forms of child labour as well as drug trafficking and begging. In this context,
the Committee recommends that States parties which have not yet done so ratify the Convention No.
138 of the International Labour Organization (ILO) concerning the minimum age for admission to
employment and ILO Convention No. 182 concerning the prohibition of and immediate action for
the elimination of the worst forms of child labour. In the implementation of these conventions States
parties should pay special attention to the vulnerability and needs of children with disabilities.
C. Street children
76. Children with disabilities, specifically physical disabilities, often end up on the streets for a
variety of reasons, including economic and social factors. Children with disabilities living and/or
working on the streets need to be provided with adequate care, including nutrition, clothing, housing,
educational opportunities, life-skills training as well as protection from the different dangers
including economic and sexual exploitation. In this regard an individualized approach is necessary
which takes full account of the special needs and the capacities of the child. The Committee is
particularly concerned that children with disabilities are sometimes exploited for the purpose of
begging in the streets or elsewhere; sometimes disabilities are inflicted on children for the purpose
of begging. States parties are required to take all necessary actions to prevent this form of
exploitation and to explicitly criminalize exploitation in such manner and take effective measures
to bring the perpetrators to justice.
D. Sexual exploitation
77. The Committee has often expressed grave concern at the growing number of child victims of
child prostitution and child pornography. Children with disabilities are more likely than others to
become victims of these serious crimes. Governments are urged to ratify and implement the
Optional Protocol on the sale of children, child prostitution and child pornography (OPSC) and, in
fulfilling their obligations to the Optional Protocol, States parties should pay particular attention to
the protection of children with disabilities recognizing their particular vulnerability.
E. Children in armed conflict
78. As previously noted above, armed conflicts are a major cause of disabilities whether children
are actually involved in the conflict or are victims of combat. In this context, Governments are urged
to ratify and implement the Optional Protocol on the involvement of children in armed conflict
(OPAC). Special attention should be paid to the recovery and social re-integration of children who
suffer disabilities as a result of armed conflicts. Furthermore, the Committee recommends that States
parties explicitly exclude children with disabilities from recruitment in armed forces and take the
necessary legislative and other measures to fully implement that prohibition.
F. Refugee and internally displaced children, children belonging to minorities and
indigenous children
79. Certain disabilities result directly from the conditions that have led some individuals to become
refugees or internally displaced persons, such as human-caused or natural disasters. For example,
landmines and unexploded ordnance kill and injure refugee, internally displaced and resident
children long after armed conflicts have ceased. Refugee and internally displaced children with
disabilities are vulnerable to multiple forms of discrimination, particularly refugee and internally
displaced girls with disabilities, who are more often than boys subject to abuse, including sexual
abuse, neglect and exploitation. The Committee strongly emphasizes that refugee and internally
displaced children with disabilities should be given high priority for special assistance, including
preventative assistance, access to adequate health and social services, including psychosocial
recovery and social reintegration. The Office of the United Nations High Commissioner for
Refugees (UNHCR) has made children a policy priority and adopted several documents to guide its
work in that area, including the Guidelines on Refugee Children in 1988, which are incorporated
into UNHCR Policy on Refugee Children. The Committee also recommends that States parties take
into account the Committee's general comment No. 6 (2005) on the treatment of unaccompanied and
separated children outside of their country of origin.
80. All appropriate and necessary measures undertaken to protect and promote the rights of
children with disabilities must include and pay special attention to the particular vulnerability and
needs of children belonging to minorities and indigenous children who are more likely to be already
marginalized within their communities. Programmes and policies must always be culturally and
ethnically sensitive.
Notes:
1. See Wouter Vandenhole, Non-Discrimination and Equality in the View of the UN Human Rights
Treaty Bodies, p.170-172, Antwerpen/Oxford, Intersentia 2005. [Back]
2. In the present general comment the Committee focuses on the need to pay special attention to
children with disabilities in the context of the general measures. For a more elaborated explanation
of the content and importance of these measures, see the Committee's general comment No. 5 (2003)
on general measures of implementation of the Convention on the Rights of the Child. [Back]
3. See also the general comment No. 5 (1994) of the Committee on Economic, Social and Cultural
Rights regarding persons with disabilities. [Back]
4. In this context the Committee would like to make a reference to the United Nations Millennium
Declaration (A/RES/55/2) and in particular to the Millennium Development Goal No. 2 relating to
universal primary education according to which Governments are committed to "ensure that, by
2015, children everywhere, boys and girls alike, will be able to complete a full course of primary
schooling and that girls and boys will have equal access to all levels of education". The Committee
would also like to refer to other international commitments which endorse the idea of inclusive
education, inter alia, the Salamanca Statement and Framework for Action on Special Needs
Education adopted by the World Conference on Special Needs Education: Access and Quality,
Salamanca, Spain, 7-10 June 1994 (UNESCO and Ministry of Education and Science of Spain) and
the Dakar Framework for Action, Education for All: Meeting our Collective Commitments, adopted
by the World Education Forum, Dakar, Senegal, 26-28 April 2000. [Back]
5. UNESCO's Guidelines for Inclusion: Ensuring Access to Education for All (UNESCO 2005)
provides the following definition "Inclusion is seen as a process of addressing and responding to the
diversity of needs of all learners through increasing participation in learning, cultures and
communities, and reducing exclusion within and from education. It involves changes and
modifications in content, approaches, structures and strategies, with a common vision which covers
all children of the appropriate age range and a conviction that it is the responsibility of the regular
system to educate all children ... Inclusion is concerned with the identification and removal of
barriers..." (pp. 13 and 15). [Back]
Forty-fourth session (2007)
General comment No. 10:
Children's rights in juvenile justice
I. INTRODUCTION
1. In the reports they submit to the Committee on the Rights of the Child (hereafter: the Committee),
States parties often pay quite detailed attention to the rights of children alleged as, accused of, or
recognized as having infringed the penal law, also referred to as "children in conflict with the law".
In line with the Committee's guidelines for periodic reporting, the implementation of articles 37 and
40 of the Convention on the Rights of the Child (hereafter: CRC) is the main focus of the
information provided by the States parties. The Committee notes with appreciation the many efforts
to establish an administration of juvenile justice in compliance with CRC. However, it is also clear
that many States parties still have a long way to go in achieving full compliance with CRC, e.g. in
the areas of procedural rights, the development and implementation of measures for dealing with
children in conflict with the law without resorting to judicial proceedings, and the use of deprivation
of liberty only as a measure of last resort.
2. The Committee is equally concerned about the lack of information on the measures that States
parties have taken to prevent children from coming into conflict with the law. This may be the result
of a lack of a comprehensive policy for the field of juvenile justice. This may also explain why many
States parties are providing only very limited statistical data on the treatment of children in conflict
with the law.
3. The experience in reviewing the States parties' performance in the field of juvenile justice is the
reason for the present general comment, by which the Committee wants to provide the States parties
with more elaborated guidance and recommendations for their efforts to establish an administration
of juvenile justice in compliance with CRC. This juvenile justice, which should promote, inter alia,
the use of alternative measures such as diversion and restorative justice, will provide States parties
with possibilities to respond to children in conflict with the law in an effective manner serving not
only the best interests of these children, but also the short- and long-term interest of the society at
large.
II. THE OBJECTIVES OF THE PRESENT GENERAL COMMENT
4. At the outset, the Committee wishes to underscore that CRC requires States parties to develop and
implement a comprehensive juvenile justice policy. This comprehensive approach should not be
limited to the implementation of the specific provisions contained in articles 37 and 40 of CRC, but
should also take into account the general principles enshrined in articles 2, 3, 6 and 12, and in all
other relevant articles of CRC, such as articles 4 and 39. Therefore, the objectives of this general
comment are:
- To encourage States parties to develop and implement a comprehensive juvenile justice
policy to prevent and address juvenile delinquency based on and in compliance with CRC, and to
seek in this regard advice and support from the Interagency Panel on Juvenile Justice, with
representatives of the Office of the United Nations High Commissioner for Human Rights
(OHCHR), the United Nations Children's Fund (UNICEF), the United Nations Office on Drugs and
Crime (UNODC) and non-governmental organizations (NGO's), established by ECOSOC resolution
1997/30;
- To provide States parties with guidance and recommendations for the content of this
comprehensive juvenile justice policy, with special attention to prevention of juvenile delinquency,
the introduction of alternative measures allowing for responses to juvenile delinquency without
resorting to judicial procedures, and for the interpretation and implementation of all other provisions
contained in articles 37 and 40 of CRC;
- To promote the integration, in a national and comprehensive juvenile justice policy, of other
international standards, in particular, the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (the "Beijing Rules"), the United Nations Rules for the Protection
of Juveniles Deprived of their Liberty (the "Havana Rules"), and the United Nations Guidelines for
the Prevention of Juvenile Delinquency (the "Riyadh Guidelines").
III. JUVENILE JUSTICE: THE LEADING PRINCIPLES OF A COMPREHENSIVE
POLICY
5. Before elaborating on the requirements of CRC in more detail, the Committee will first mention
the leading principles of a comprehensive policy for juvenile justice. In the administration of
juvenile justice, States parties have to apply systematically the general principles contained in
articles 2, 3, 6 and 12 of CRC, as well as the fundamental principles of juvenile justice enshrined
in articles 37 and 40.
Non-discrimination (art. 2)
6. States parties have to take all necessary measures to ensure that all children in conflict with the
law are treated equally. Particular attention must be paid to de facto discrimination and disparities,
which may be the result of a lack of a consistent policy and involve vulnerable groups of children,
such as street children, children belonging to racial, ethnic, religious or linguistic minorities,
indigenous children, girl children, children with disabilities and children who are repeatedly in
conflict with the law (recidivists). In this regard, training of all professionals involved in the
administration of juvenile justice is important (see paragraph 97 below), as well as the establishment
of rules, regulations or protocols which enhance equal treatment of child offenders and provide
redress, remedies and compensation.
7. Many children in conflict with the law are also victims of discrimination, e.g. when they try to
get access to education or to the labour market. It is necessary that measures are taken to prevent
such discrimination, inter alia, as by providing former child offenders with appropriate support and
assistance in their efforts to reintegrate in society, and to conduct public campaigns emphasizing
their right to assume a constructive role in society (art. 40 (1)).
8. 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 this criminalization. These acts, also known as Status Offences, are not
considered to be such if committed by adults. The Committee recommends that the States parties
abolish the provisions on status offences in order to establish an equal treatment under the law for
children and adults. In this regard, the Committee also refers to article 56 of the Riyadh Guidelines
which reads: "In order to prevent further stigmatization, victimization and criminalization of young
persons, legislation should be enacted to ensure that any conduct not considered an offence or not
penalized if committed by an adult is not considered an offence and not penalized if committed by
a young person."
9. In addition, behaviour such as vagrancy, roaming the streets or runaways should be dealt with
through the implementation of child protective measures, including effective support for parents
and/or other caregivers and measures which address the root causes of this behaviour.
Best interests of the child (art. 3)
10. In all decisions taken within the context of the administration of juvenile justice, the best
interests of the child should be a primary consideration. Children differ from adults in their physical
and psychological development, and their emotional and educational needs. Such differences
constitute the basis for the lesser culpability of children in conflict with the law. These and other
differences are the reasons for a separate juvenile justice system and require a different treatment
for children. The protection of the best interests of the child means, for instance, that the traditional
objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and
restorative justice objectives in dealing with child offenders. This can be done in concert with
attention to effective public safety.
The right to life, survival and development (art. 6)
11. This inherent right of every child should guide and inspire States parties in the development of
effective national policies and programmes for the prevention of juvenile delinquency, because it
goes without saying that delinquency has a very negative impact on the child's development.
Furthermore, this basic right should result in a policy of responding to juvenile delinquency in ways
that support the child's development. The death penalty and a life sentence without parole are
explicitly prohibited under article 37 (a) of CRC (see paragraphs 75-77 below). The use of
deprivation of liberty has very negative consequences for the child's harmonious development and
seriously hampers his/her reintegration in society. In this regard, article 37 (b) explicitly provides
that deprivation of liberty, including arrest, detention and imprisonment, should be used only as a
measure of last resort and for the shortest appropriate period of time, so that the child's right to
development is fully respected and ensured (see paragraphs 78-88 below). |1|
The right to be heard (art. 12)
12. The right of the child to express his/her views freely in all matters affecting the child should be
fully respected and implemented throughout every stage of the process of juvenile justice (see
paragraphs 43-45 below). The Committee notes that the voices of children involved in the juvenile
justice system are increasingly becoming a powerful force for improvements and reform, and for
the fulfilment of their rights.
Dignity (art. 40 (1))
13. CRC provides a set of fundamental principles for the treatment to be accorded to children in
conflict with the law:
- Treatment that is consistent with the child's sense of dignity and worth. This principle
reflects the fundamental human right enshrined in article 1 of UDHR, which stipulates that all
human beings are born free and equal in dignity and rights. This inherent right to dignity and worth,
to which the preamble of CRC makes explicit reference, has to be respected and protected
throughout the entire process of dealing with the child, from the first contact with law enforcement
agencies and all the way to the implementation of all measures for dealing with the child;
- Treatment that reinforces the child's respect for the human rights and freedoms of others. This
principle is in line with the consideration in the preamble that a child should be brought up in the
spirit of the ideals proclaimed in the Charter of the United Nations. It also means that, within the
juvenile justice system, the treatment and education of children shall be directed to the development
of respect for human rights and freedoms (art. 29 (1) (b) of CRC and general comment No. 1 on the
aims of education). It is obvious that this principle of juvenile justice requires a full respect for and
implementation of the guarantees for a fair trial recognized in article 40 (2) (see paragraphs 40-67
below). If the key actors in juvenile justice, such as police officers, prosecutors, judges and
probation officers, do not fully respect and protect these guarantees, how can they expect that with
such poor examples the child will respect the human rights and fundamental freedom of others?;
- Treatment that takes into account the child's age and promotes the child's reintegration and the
child's assuming a constructive role in society. This principle must be applied, observed and
respected throughout the entire process of dealing with the child, from the first contact with law
enforcement agencies all the way to the implementation of all measures for dealing with the child.
It requires that all professionals involved in the administration of juvenile justice be knowledgeable
about child development, the dynamic and continuing growth of children, what is appropriate to
their well-being, and the pervasive forms of violence against children;
- Respect for the dignity of the child requires that all forms of violence in the treatment of children
in conflict with the law must be prohibited and prevented. Reports received by the Committee show
that violence occurs in all phases of the juvenile justice process, from the first contact with the
police, during pretrial detention and during the stay in treatment and other facilities for children
sentenced to deprivation of liberty. The committee urges the States parties to take effective measures
to prevent such violence and to make sure that the perpetrators are brought to justice and to give
effective follow-up to the recommendations made in the report on the United Nations Study on
Violence Against Children presented to the General Assembly in October 2006 (A/61/299).
14. The Committee acknowledges that the preservation of public safety is a legitimate aim of the
justice system. However, it is of the opinion that this aim is best served by a full respect for and
implementation of the leading and overarching principles of juvenile justice as enshrined in CRC.
IV. JUVENILE JUSTICE: THE CORE ELEMENTS OF A COMPREHENSIVE POLICY
15. A comprehensive policy for juvenile justice must deal with the following core elements: the
prevention of juvenile delinquency; interventions without resorting to judicial proceedings and
interventions in the context of judicial proceedings; the minimum age of criminal responsibility and
the upper age-limits for juvenile justice; the guarantees for a fair trial; and deprivation of liberty
including pretrial detention and post-trial incarceration.
A. Prevention of juvenile delinquency
16. One of the most important goals of the implementation of CRC is to promote the full and
harmonious development of the child's personality, talents and mental and physical abilities
(preamble, and articles 6 and 29). The child should be prepared to live an individual and responsible
life in a free society (preamble, and article 29), in which he/she can assume a constructive role with
respect for human rights and fundamental freedoms (arts. 29 and 40). In this regard, parents have
the responsibility to provide the child, in a manner consistent with his evolving capacities, with
appropriate direction and guidance in the exercise of her/his rights as recognized in the Convention.
In the light of these and other provisions of CRC, it is obviously not in the best interests of the child
if he/she grows up in circumstances that may cause an increased or serious risk of becoming
involved in criminal activities. Various measures should be taken for the full and equal
implementation of the rights to an adequate standard of living (art. 27), to the highest attainable
standard of health and access to health care (art. 24), to education (arts. 28 and 29), to protection
from all forms of physical or mental violence, injury or abuse (art. 19), and from economic or sexual
exploitation (arts. 32 and 34), and to other appropriate services for the care or protection of children.
17. As stated above, a juvenile justice policy without a set of measures aimed at preventing juvenile
delinquency suffers from serious shortcomings. States parties should fully integrate into their
comprehensive national policy for juvenile justice the United Nations Guidelines for the Prevention
of Juvenile Delinquency (the Riyadh Guidelines) adopted by the General Assembly in its resolution
45/112 of 14 December 1990.
18. The Committee fully supports the Riyadh Guidelines and agrees that emphasis should be placed
on prevention policies that facilitate the successful socialization and integration of all children, in
particular through the family, the community, peer groups, schools, vocational training and the
world of work, as well as through voluntary organizations. This means, inter alia that prevention
programmes should focus on support for particularly vulnerable families, the involvement of schools
in teaching basic values (including information about the rights and responsibilities of children and
parents under the law), and extending special care and attention to young persons at risk. In this
regard, particular attention should also be given to children who drop out of school or otherwise do
not complete their education. The use of peer group support and a strong involvement of parents are
recommended. The States parties should also develop community-based services and programmes
that respond to the special needs, problems, concerns and interests of children, in particular of
children repeatedly in conflict with the law, and that provide appropriate counselling and guidance
to their families.
19. Articles 18 and 27 of CRC confirm the importance of the responsibility of parents for the
upbringing of their children, but at the same time CRC requires States parties to provide the
necessary assistance to parents (or other caretakers), in the performance of their parental
responsibilities. The measures of assistance should not only focus on the prevention of negative
situations, but also and even more on the promotion of the social potential of parents. There is a
wealth of information on home- and family-based prevention programmes, such as parent training,
programmes to enhance parent-child interaction and home visitation programmes, which can start
at a very young age of the child. In addition, early childhood education has shown to be correlated
with a lower rate of future violence and crime. At the community level, positive results have been
achieved with programmes such as Communities that Care (CTC), a risk-focused prevention
strategy.
20. States parties should fully promote and support the involvement of children, in accordance with
article 12 of CRC, and of parents, community leaders and other key actors (e.g. representatives of
NGOs, probation services and social workers), in the development and implementation of prevention
programmes. The quality of this involvement is a key factor in the success of these programmes.
21. The Committee recommends that States parties seek support and advice from the Interagency
Panel on Juvenile Justice in their efforts to develop effective prevention programmes.
B. Interventions/diversion (see also section E below)
22. Two kinds of interventions can be used by the State authorities for dealing with children alleged
as, accused of, or recognized as having infringed the penal law: measures without resorting to
judicial proceedings and measures in the context of judicial proceedings. The Committee reminds
States parties that utmost care must be taken to ensure that the child's human rights and legal
safeguards are thereby fully respected and protected.
23. Children in conflict with the law, including child recidivists, have the right to be treated in ways
that promote their reintegration and the child's assuming a constructive role in society (art. 40 (1)
of CRC). The arrest, detention or imprisonment of a child may be used only as a measure of last
resort (art. 37 (b)). It is, therefore, necessary - as part of a comprehensive policy for juvenile justice -
to develop and implement a wide range of measures to ensure that children are dealt with in a
manner appropriate to their well-being, and proportionate to both their circumstances and the
offence committed. These should include care, guidance and supervision, counselling, probation,
foster care, educational and training programmes, and other alternatives to institutional care (art. 40
(4)).
Interventions without resorting to judicial proceedings
24. According to article 40 (3) of CRC, the States parties shall seek to promote measures for dealing
with children alleged as, accused of, or recognized as having infringed the penal law without
resorting to judicial proceedings, whenever appropriate and desirable. Given the fact that the
majority of child offenders commit only minor offences, a range of measures involving removal
from criminal/juvenile justice processing and referral to alternative (social) services (i.e. diversion)
should be a well-established practice that can and should be used in most cases.
25. In the opinion of the Committee, the obligation of States parties to promote measures for dealing
with children in conflict with the law without resorting to judicial proceedings applies, but is
certainly not limited to children who commit minor offences, such as shoplifting or other property
offences with limited damage, and first-time child offenders. Statistics in many States parties
indicate that a large part, and often the majority, of offences committed by children fall into these
categories. It is in line with the principles set out in article 40 (1) of CRC to deal with all such cases
without resorting to criminal law procedures in court. In addition to avoiding stigmatization, this
approach has good results for children and is in the interests of public safety, and has proven to be
more cost-effective.
26. States parties should take measures for dealing with children in conflict with the law without
resorting to judicial proceedings as an integral part of their juvenile justice system, and ensure that
children's human rights and legal safeguards are thereby fully respected and protected (art. 40 (3)
(b)).
27. It is left to the discretion of States parties to decide on the exact nature and content of the
measures for dealing with children in conflict with the law without resorting to judicial proceedings,
and to take the necessary legislative and other measures for their implementation. Nonetheless, on
the basis of the information provided in the reports from some States parties, it is clear that a variety
of community-based programmes have been developed, such as community service, supervision and
guidance by for example social workers or probation officers, family conferencing and other forms
of restorative justice including restitution to and compensation of victims. Other States parties
should benefit from these experiences. As far as full respect for human rights and legal safeguards
is concerned, the Committee refers to the relevant parts of article 40 of CRC and emphasizes the
following:
- Diversion (i.e. measures for dealing with children, alleged as, accused of, or recognized
as having infringed the penal law without resorting to judicial proceedings) should be used only
when there is compelling evidence that the child committed the alleged offence, that he/she freely
and voluntarily admits responsibility, and that no intimidation or pressure has been used to get that
admission and, finally, that the admission will not be used against him/her in any subsequent legal
proceeding;
- The child must freely and voluntarily give consent in writing to the diversion, a consent that should
be based on adequate and specific information on the nature, content and duration of the measure,
and on the consequences of a failure to cooperate, carry out and complete the measure. With a view
to strengthening parental involvement, States parties may also consider requiring the consent of
parents, in particular when the child is below the age of 16 years;
- The law has to contain specific provisions indicating in which cases diversion is possible, and the
powers of the police, prosecutors and/or other agencies to make decisions in this regard should be
regulated and reviewed, in particular to protect the child from discrimination;
- The child must be given the opportunity to seek legal or other appropriate assistance on the
appropriateness and desirability of the diversion offered by the competent authorities, and on the
possibility of review of the measure;
- The completion of the diversion by the child should result in a definite and final closure of the
case. Although confidential records can be kept of diversion for administrative and review purposes,
they should not be viewed as "criminal records" and a child who has been previously diverted must
not be seen as having a previous conviction. If any registration takes place of this event, access to
that information should be given exclusively and for a limited period of time, e.g. for a maximum
of one year, to the competent authorities authorized to deal with children in conflict with the law.
Interventions in the context of judicial proceedings
28. When judicial proceedings are initiated by the competent authority (usually the prosecutor's
office), the principles of a fair and just trial must be applied (see section D below). At the same time,
the juvenile justice system should provide for ample opportunities to deal with children in conflict
with the law by using social and/or educational measures, and to strictly limit the use of deprivation
of liberty, and in particular pretrial detention, as a measure of last resort. In the disposition phase
of the proceedings, deprivation of liberty must be used only as a measure of last resort and for the
shortest appropriate period of time (art. 37 (b)). This means that States parties should have in place
a well-trained probation service to allow for the maximum and effective use of measures such as
guidance and supervision orders, probation, community monitoring or day report centres, and the
possibility of early release from detention.
29. The Committee reminds States parties that, pursuant to article 40 (1) of CRC, reintegration
requires that no action may be taken that can hamper the child's full participation in his/her
community, such as stigmatization, social isolation, or negative publicity of the child. For a child
in conflict with the law to be dealt with in a way that promotes reintegration requires that all actions
should support the child becoming a full, constructive member of his/her society.
C. Age and children in conflict with the law
The minimum age of criminal responsibility
30. The reports submitted by States parties show the existence of a wide range of minimum ages of
criminal responsibility. They range from a very low level of age 7 or 8 to the commendable high
level of age 14 or 16. Quite a few States parties use two minimum ages of criminal responsibility.
Children in conflict with the law who at the time of the commission of the crime are at or above the
lower minimum age but below the higher minimum age are assumed to be criminally responsible
only if they have the required maturity in that regard. The assessment of this maturity is left to the
court/judge, often without the requirement of involving a psychological expert, and results in
practice in the use of the lower minimum age in cases of serious crimes. The system of two
minimum ages is often not only confusing, but leaves much to the discretion of the court/judge and
may result in discriminatory practices. In the light of this wide range of minimum ages for criminal
responsibility the Committee feels that there is a need to provide the States parties with clear
guidance and recommendations regarding the minimum age of criminal responsibility.
31. Article 40 (3) of CRC requires States parties to seek to promote, inter alia, the establishment of
a minimum age below which children shall be presumed not to have the capacity to infringe the
penal law, but does not mention a specific minimum age in this regard. The committee understands
this provision as an obligation for States parties to set a minimum age of criminal responsibility
(MACR). This minimum age means the following:
- Children who commit an offence at an age below that minimum cannot be held
responsible in a penal law procedure. Even (very) young children do have the capacity to infringe
the penal law but if they commit an offence when below MACR the irrefutable assumption is that
they cannot be formally charged and held responsible in a penal law procedure. For these children
special protective measures can be taken if necessary in their best interests;
- Children at or above the MACR at the time of the commission of an offence (or: infringement of
the penal law) but younger than 18 years (see also paragraphs 35-38 below) can be formally charged
and subject to penal law procedures. But these procedures, including the final outcome, must be in
full compliance with the principles and provisions of CRC as elaborated in the present general
comment.
32. Rule 4 of the Beijing Rules recommends that the beginning of MACR shall not be fixed at too
low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. In line
with this rule the Committee has recommended States parties not to set a MACR at a too low level
and to increase the existing low MACR to an internationally acceptable level. From these
recommendations, it can be concluded that a minimum age of criminal responsibility below the age
of 12 years is considered by the Committee not to be internationally acceptable. States parties are
encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and
to continue to increase it to a higher age level.
33. At the same time, the Committee urges States parties not to lower their MACR to the age of 12.
A higher MACR, for instance 14 or 16 years of age, contributes to a juvenile justice system which,
in accordance with article 40 (3) (b) of CRC, deals with children in conflict with the law without
resorting to judicial proceedings, providing that the child's human rights and legal safeguards are
fully respected. In this regard, States parties should inform the Committee in their reports in specific
detail how children below the MACR set in their laws are treated when they are recognized as
having infringed the penal law, or are alleged as or accused of having done so, and what kinds of
legal safeguards are in place to ensure that their treatment is as fair and just as that of children at or
above MACR.
34. The Committee wishes to express its concern about the practice of allowing exceptions to a
MACR which permit the use of a lower minimum age of criminal responsibility in cases where the
child, for example, is accused of committing a serious offence or where the child is considered
mature enough to be held criminally responsible. The Committee strongly recommends that States
parties set a MACR that does not allow, by way of exception, the use of a lower age.
35. If there is no proof of age and it cannot be established that the child is at or above the MACR,
the child shall not be held criminally responsible (see also paragraph 39 below).
The upper age-limit for juvenile justice
36. The Committee also wishes to draw the attention of States parties to the upper age-limit for the
application of the rules of juvenile justice. These special rules - in terms both of special procedural
rules and of rules for diversion and special measures - should apply, starting at the MACR set in the
country, for all children who, at the time of their alleged commission of an offence (or act
punishable under the criminal law), have not yet reached the age of 18 years.
37. The Committee wishes to remind States parties that they have recognized the right of every child
alleged as, accused of, or recognized as having infringed the penal law to be treated in accordance
with the provisions of article 40 of CRC. This means that every person under the age of 18 years at
the time of the alleged commission of an offence must be treated in accordance with the rules of
juvenile justice.
38. The Committee, therefore, recommends that those States parties which limit the applicability
of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way
of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with
a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons
under the age of 18 years. The Committee notes with appreciation that some States parties allow for
the application of the rules and regulations of juvenile justice to persons aged 18 and older, usually
till the age of 21, either as a general rule or by way of exception.
39. Finally, the Committee wishes to emphasize the fact that it is crucial for the full implementation
of article 7 of CRC requiring, inter alia, that every child shall be registered immediately after birth
to set age-limits one way or another, which is the case for all States parties. A child without a
provable date of birth is extremely vulnerable to all kinds of abuse and injustice regarding the
family, work, education and labour, particularly within the juvenile justice system. Every child must
be provided with a birth certificate free of charge whenever he/she needs it to prove his/her age. If
there is no proof of age, the child is entitled to a reliable medical or social investigation that may
establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the
right to the rule of the benefit of the doubt.
D. The guarantees for a fair trial
40. Article 40 (2) of CRC contains an important list of rights and guarantees that are all meant to
ensure that every child alleged as or accused of having infringed the penal law receives fair
treatment and trial. Most of these guarantees can also be found in article 14 of the International
Covenant on Civil and Political Rights (ICCPR), which the Human Rights Committee elaborated
and commented on in its general comment No. 13 (1984) (Administration ofjustice) which is
currently in the process of being reviewed. However, the implementation of these guarantees for
children does have some specific aspects which will be presented in this section. Before doing so,
the Committee wishes to emphasize that a key condition for a proper and effective implementation
of these rights or guarantees is the quality of the persons involved in the administration of juvenile
justice. The training of professionals, such as police officers, prosecutors, legal and other
representatives of the child, judges, probation officers, social workers and others is crucial and
should take place in a systematic and ongoing manner. These professionals should be well informed
about the child's, and particularly about the adolescent's physical, psychological, mental and social
development, as well as about the special needs of the most vulnerable children, such as children
with disabilities, displaced children, street children, refugee and asylum-seeking children, and
children belonging to racial, ethnic, religious, linguistic or other minorities (see paragraphs 6-9
above). Since girls in the juvenile justice system may be easily overlooked because they represent
only a small group, special attention must be paid to the particular needs of the girl child, e.g. in
relation to prior abuse and special health needs. Professionals and staff should act under all
circumstances in a manner consistent with the child's dignity and worth, which reinforces the child's
respect for the human rights and fundamental freedoms of others, and which promotes the child's
reintegration and his/her assuming a constructive role in society (art. 40 (1)). All the guarantees
recognized in article 40 (2), which will be dealt with hereafter, are minimum standards, meaning that
States parties can and should try to establish and observe higher standards, e.g. in the areas of legal
assistance and the involvement of the child and her/his parents in the judicial process.
No retroactive juvenile justice (art. 40 (2) (a))
41. Article 40 (2) (a) of CRC affirms that the rule that no one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a criminal offence, under national
or international law, at the time it was committed is also applicable to children (see also article 15
of ICCPR). It means that no child can be charged with or sentenced under the penal law for acts or
omissions which at the time they were committed were not prohibited under national or international
law. In the light of the fact that many States parties have recently strengthened and/or expanded their
criminal law provisions to prevent and combat terrorism, the Committee recommends that States
parties ensure that these changes do not result in retroactive or unintended punishment of children.
The Committee also wishes to remind States parties that the rule that no heavier penalty shall be
imposed than the one that was applicable at the time when the criminal offence was committed, as
expressed in article 15 of ICCPR, is in the light of article 41 of CRC, applicable to children in the
States parties to ICCPR. No child shall be punished with a heavier penalty than the one applicable
at the time of his/her infringement of the penal law. But if a change of law after the act provides for
a lighter penalty, the child should benefit from this change.
The presumption of innocence (art. 40 (2) (b) (i))
42. The presumption of innocence is fundamental to the protection of the human rights of children
in conflict with the law. It means that the burden of proof of the charge(s) brought against the child
is on the prosecution. The child alleged as or accused of having infringed the penal law has the
benefit of doubt and is only guilty as charged if these charges have been proven beyond reasonable
doubt. The child has the right to be treated in accordance with this presumption and it is the duty of
all public authorities or others involved to refrain from prejudging the outcome of the trial. States
parties should provide information about child development to ensure that this presumption of
innocence is respected in practice. Due to the lack of understanding of the process, immaturity, fear
or other reasons, the child may behave in a suspicious manner, but the authorities must not assume
that the child is guilty without proof of guilt beyond any reasonable doubt.
The right to be heard (art. 12)
43. Article 12 (2) of CRC requires that a child be provided with the opportunity to be heard in any
judicial or 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.
44. It is obvious that for a child alleged as, accused of, or recognized as having infringed the penal
law, the right to be heard is fundamental for a fair trial. It is equally obvious that the child has the
right to be heard directly and not only through a representative or an appropriate body if it is in
her/his best interests. This right must be fully observed at all stages of the process, starting with
pretrial stage when the child has the right to remain silent, as well as the right to be heard by the
police, the prosecutor and the investigating judge. But it also applies to the stages of adjudication
and of implementation of the imposed measures. In other words, the child must be given the
opportunity to express his/her views freely, and those views should be given due weight in
accordance with the age and maturity of the child (art. 12 (1)), throughout the juvenile justice
process. This means that the child, in order to effectively participate in the proceedings, must be
informed not only of the charges (see paragraphs 47-48 below), but also of the juvenile justice
process as such and of the possible measures.
45. The child should be given the opportunity to express his/her views concerning the (alternative)
measures that may be imposed, and the specific wishes or preferences he/she may have in this regard
should be given due weight. Alleging that the child is criminally responsible implies that he/she
should be competent and able to effectively participate in the decisions regarding the most
appropriate response to allegations of his/her infringement of the penal law (see paragraph 46
below). It goes without saying that the judges involved are responsible for taking the decisions. But
to treat the child as a passive object does not recognize his/her rights nor does it contribute to an
effective response to his/her behaviour. This also applies to the implementation of the measure(s)
imposed. Research shows that an active engagement of the child in this implementation will, in most
cases, contribute to a positive result.
The right to effective participation in the proceedings (art 40 (2) (b) (iv))
46. A fair trial requires that the child alleged as or accused of having infringed the penal law be able
to effectively participate in the trial, and therefore needs to comprehend the charges, and possible
consequences and penalties, in order to direct the legal representative, to challenge witnesses, to
provide an account of events, and to make appropriate decisions about evidence, testimony and the
measure(s) to be imposed. Article 14 of the Beijing Rules provides that the proceedings should be
conducted in an atmosphere of understanding to allow the child to participate and to express
himself/herself freely. Taking into account the child's age and maturity may also require modified
courtroom procedures and practices.
Prompt and direct information of the charge(s) (art. 40 (2) (b) (ii))
47. Every child alleged as or accused of having infringed the penal law has the right to be informed
promptly and directly of the charges brought against him/her. Prompt and direct means as soon as
possible, and that is when the prosecutor or the judge initially takes procedural steps against the
child. But also when the authorities decide to deal with the case without resorting to judicial
proceedings, the child must be informed of the charge(s) that may justify this approach. This is part
of the requirement of article 40 (3) (b) of CRC that legal safeguards should be fully respected. The
child should be informed in a language he/she understands. This may require a presentation of the
information in a foreign language but also a "translation" of the formal legal jargon often used in
criminal/juvenile charges into a language that the child can understand.
48. Providing the child with an official document is not enough and an oral explanation may often
be necessary. The authorities should not leave this to the parents or legal guardians or the child's
legal or other assistance. It is the responsibility of the authorities (e.g. police, prosecutor, judge) to
make sure that the child understands each charge brought against him/her. The Committee is of the
opinion that the provision of this information to the parents or legal guardians should not be an
alternative to communicating this information to the child. It is most appropriate if both the child
and the parents or legal guardians receive the information in such a way that they can understand
the charge(s) and the possible consequences.
Legal or other appropriate assistance (art. 40 (2) (b) (ii))
49. The child must be guaranteed legal or other appropriate assistance in the preparation and
presentation of his/her defence. CRC does require that the child be provided with assistance, which
is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion
of States parties to determine how this assistance is provided but it should be free of charge. The
Committee recommends the State parties provide as much as possible for adequate trained legal
assistance, such as expert lawyers or paralegal professionals. Other appropriate assistance is possible
(e.g. social worker), but that person must have sufficient knowledge and understanding of the
various legal aspects of the process of juvenile justice and must be trained to work with children in
conflict with the law.
50. As required by article 14 (3) (b) of ICCPR, the child and his/her assistant must have adequate
time and facilities for the preparation of his/her defence. Communications between the child and
his/her assistance, either in writing or orally, should take place under such conditions that the
confidentiality of such communications is fully respected in accordance with the guarantee provided
for in article 40 (2) (b) (vii) of CRC, and the right of the child to be protected against interference
with his/her privacy and correspondence (art. 16 of CRC). A number of States parties have made
reservations regarding this guarantee (art. 40 (2) (b) (ii) of CRC), apparently assuming that it
requires exclusively the provision of legal assistance and therefore by a lawyer. That is not the case
and such reservations can and should be withdrawn.
Decisions without delay and with involvement of parents (art. 40 (2) (b) (iii))
51. Internationally there is a consensus that for children in conflict with the law the time between
the commission of the offence and the final response to this act should be as short as possible. The
longer this period, the more likely it is that the response loses its desired positive, pedagogical
impact, and the more the child will be stigmatized. In this regard, the Committee also refers to
article 37 (d) of CRC, where the child deprived of liberty has the right to a prompt decision on
his/her action to challenge the legality of the deprivation of his/her liberty. The term "prompt" is
even stronger - and justifiably so given the seriousness of deprivation of liberty -than the term
"without delay" (art. 40 (2) (b) (iii) of CRC), which is stronger than the term "without undue delay"
of article 14 (3) (c) of ICCPR.
52. The Committee recommends that the States parties set and implement time limits for the period
between the commission of the offence and the completion of the police investigation, the decision
of the prosecutor (or other competent body) to bring charges against the child, and the final
adjudication and decision by the court or other competent judicial body. These time limits should
be much shorter than those set for adults. But at the same time, decisions without delay should be
the result of a process in which the human rights of the child and legal safeguards are fully
respected. In this decision-making process without delay, the legal or other appropriate assistance
must be present. This presence should not be limited to the trial before the court or other judicial
body, but also applies to all other stages of the process, beginning with the interviewing
(interrogation) of the child by the police.
53. Parents or legal guardians should also be present at the proceedings because they can provide
general psychological and emotional assistance to the child. The presence of parents does not mean
that parents can act in defence of the child or be involved in the decision-making process. However,
the judge or competent authority may decide, at the request of the child or of his/her legal or other
appropriate assistance or because it is not in the best interests of the child (art. 3 of CRC), to limit,
restrict or exclude the presence of the parents from the proceedings.
54. The Committee recommends that States parties explicitly provide by law for the maximum
possible involvement of parents or legal guardians in the proceedings against the child. This
involvement shall in general contribute to an effective response to the child's infringement of the
penal law. To promote parental involvement, parents must be notified of the apprehension of their
child as soon as possible.
55. At the same time, the Committee regrets the trend in some countries to introduce the punishment
of parents for the offences committed by their children. Civil liability for the damage caused by the
child's act can, in some limited cases, be appropriate, in particular for the younger children (e.g.
below 16 years of age). But criminalizing parents of children in conflict with the law will most likely
not contribute to their becoming active partners in the social reintegration of their child.
Freedom from compulsory self-incrimination (art. 40 (2) (b) (iii))
56. In line with article 14 (3) (g) of ICCPR, CRC requires that a child be not compelled to give
testimony or to confess or acknowledge guilt. This means in the first place - and self-evidently -that
torture, cruel, inhuman or degrading treatment in order to extract an admission or a confession
constitutes a grave violation of the rights of the child (art. 37 (a) of CRC) and is wholly
unacceptable. No such admission or confession can be admissible as evidence (article 15 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).
57. There are many other less violent ways to coerce or to lead the child to a confession or a self-incriminatory testimony. The term "compelled" should be interpreted in a broad manner and not be
limited to physical force or other clear violations of human rights. The age of the child, the child's
development, the length of the interrogation, the child's lack of understanding, the fear of unknown
consequences or of a suggested possibility of imprisonment may lead him/her to a confession that
is not true. That may become even more likely if rewards are promised such as: "You can go home
as soon as you have given us the true story", or lighter sanctions or release are promised.
58. The child being questioned must have access to a legal or other appropriate representative, and
must be able to request the presence of his/her parent(s) during questioning. There must be
independent scrutiny of the methods of interrogation to ensure that the evidence is voluntary and not
coerced, given the totality of the circumstances, and is reliable. The court or other judicial body,
when considering the voluntary nature and reliability of an admission or confession by a child, must
take into account the age of the child, the length of custody and interrogation, and the presence of
legal or other counsel, parent(s), or independent representatives of the child. Police officers and
other investigating authorities should be well trained to avoid interrogation techniques and practices
that result in coerced or unreliable confessions or testimonies.
Presence and examination of witnesses (art. 40 (2) (b) (iv))
59. The guarantee in article 40 (2) (b) (iv) of CRC underscores that the principle of equality of arms
(i.e. under conditions of equality or parity between defence and prosecution) should be observed in
the administration of juvenile justice. The term "to examine or to have examined" refers to the fact
that there are distinctions in the legal systems, particularly between the accusatorial and inquisitorial
trials. In the latter, the defendant is often allowed to examine witnesses although he/she rarely uses
this right, leaving examination of the witnesses to the lawyer or, in the case of children, to another
appropriate body. However, it remains important that the lawyer or other representative informs the
child of the possibility to examine witnesses and to allow him/her to express his/her views in that
regard, views which should be given due weight in accordance with the age and maturity of the child
(art. 12).
The right to appeal (art. 40 (2) (b) (v))
60. The child has the right to appeal against the decision by which he is found guilty of the charge(s)
brought against him/her and against the measures imposed as a consequence of this guilty verdict.
This appeal should be decided by a higher, competent, independent and impartial authority or
judicial body, in other words, a body that meets the same standards and requirements as the one that
dealt with the case in the first instance. This guarantee is similar to the one expressed in article 14
(5) of ICCPR. This right of appeal is not limited to the most serious offences.
61. This seems to be the reason why quite a few States parties have made reservations regarding this
provision in order to limit this right of appeal by the child to the more serious offences and/or
imprisonment sentences. The Committee reminds States parties to the ICCPR that a similar
provision is made in article 14 (5) of the Covenant. In the light of article 41 of CRC, it means that
this article should provide every adjudicated child with the right to appeal. The Committee
recommends that the States parties withdraw their reservations to the provision in article 40 (2) (b)
(v).
Free assistance of an interpreter (art. 40 (2) (vi))
62. If a child cannot understand or speak the language used by the juvenile justice system, he/she
has the right to get free assistance of an interpreter. This assistance should not be limited to the court
trial but should also be available at all stages of the juvenile justice process. It is also important that
the interpreter has been trained to work with children, because the use and understanding of their
mother tongue might be different from that of adults. Lack of knowledge and/or experience in that
regard may impede the child's full understanding of the questions raised, and interfere with the right
to a fair trial and to effective participation. The condition starting with "if", "if the child cannot
understand or speak the language used", means that a child of a foreign or ethnic origin for example,
who - besides his/her mother tongue - understands and speaks the official language, does not have
to be provided with the free assistance of an interpreter.
63. The Committee also wishes to draw the attention of States parties to children with speech
impairment or other disabilities. In line with the spirit of article 40 (2) (vi), and in accordance with
the special protection measures provided to children with disabilities in article 23, the Committee
recommends that States parties ensure that children with speech impairment or other disabilities are
provided with adequate and effective assistance by well-trained professionals, e.g. in sign language,
in case they are subject to the juvenile justice process (see also in this regard general comment No.
9 (The rights of children with disabilities) of the Committee on the Rights of the Child.
Full respect of privacy (arts. 16 and 40 (2) (b) (vii))
64. The right of a child to have his/her privacy fully respected during all stages of the proceedings
reflects the right to protection of privacy enshrined in article 16 of CRC. "All stages of the
proceedings" includes from the initial contact with law enforcement (e.g. a request for information
and identification) up until the final decision by a competent authority, or release from supervision,
custody or deprivation of liberty. In this particular context, it is meant to avoid harm caused by
undue publicity or by the process of labelling. No information shall be published that may lead to
the identification of a child offender because of its effect of stigmatization, and possible impact on
his/her ability to have access to education, work, housing or to be safe. It means that a public
authority should be very reluctant with press releases related to offences allegedly committed by
children and limit them to very exceptional cases. They must take measures to guarantee that
children are not identifiable via these press releases. Journalists who violate the right to privacy of
a child in conflict with the law should be sanctioned with disciplinary and when necessary (e.g. in
case of recidivism) with penal law sanctions.
65. In order to protect the privacy of the child, most States parties have as a rule - sometimes with
the possibility of exceptions - that the court or other hearings of a child accused of an infringement
of the penal law should take place behind closed doors. This rule allows for the presence of experts
or other professionals with a special permission of the court. Public hearings in juvenile justice
should only be possible in well-defined cases and at the written decision of the court. Such a
decision should be open for appeal by the child.
66. The Committee recommends that all States parties introduce the rule that court and other
hearings of a child in conflict with the law be conducted behind closed doors. Exceptions to this rule
should be very limited and clearly stated in the law. The verdict/sentence should be pronounced in
public at a court session in such a way that the identity of the child is not revealed. The right to
privacy (art. 16) requires all professionals involved in the implementation of the measures taken by
the court or another competent authority to keep all information that may result in the identification
of the child confidential in all their external contacts. Furthermore, the right to privacy also means
that the records of child offenders should be kept strictly confidential and closed to third parties
except for those directly involved in the investigation and adjudication of, and the ruling on, the
case. With a view to avoiding stigmatization and/or prejudgements, records of child offenders
should not be used in adult proceedings in subsequent cases involving the same offender (see the
Beijing Rules, rules 21.1 and 21.2), or to enhance such future sentencing.
67. The Committee also recommends that the States parties introduce rules which would allow for
an automatic removal from the criminal records of the name of the child who committed an offence
upon reaching the age of 18, or for certain limited, serious offences where removal is possible at the
request of the child, if necessary under certain conditions (e.g. not having committed an offence
within two years after the last conviction).
E. Measures (see also chapter IV, section B, above)
Pretrial alternatives
68. The decision to initiate a formal criminal law procedure does not necessarily mean that this
procedure must be completed with a formal court sentence for a child. In line with the observations
made above in section B, the Committee wishes to emphasize that the competent authorities - in
most States the office of the public prosecutor - should continuously explore the possibilities of
alternatives to a court conviction. In other words, efforts to achieve an appropriate conclusion of the
case by offering measures like the ones mentioned above in section B should continue. The nature
and duration of these measures offered by the prosecution may be more demanding, and legal or
other appropriate assistance for the child is then necessary. The performance of such a measure
should be presented to the child as a way to suspend the formal criminal/juvenile law procedure,
which will be terminated if the measure has been carried out in a satisfactory manner.
69. In this process of offering alternatives to a court conviction at the level of the prosecutor, the
child's human rights and legal safeguards should be fully respected. In this regard, the Committee
refers to the recommendations set out in paragraph 27 above, which equally apply here.
Dispositions by the juvenile court/judge
70. After a fair and just trial in full compliance with article 40 of CRC (see chapter IV, section D,
above), a decision is made regarding the measures which should be imposed on the child found
guilty of the alleged offence(s). The laws must provide the court/judge, or other competent,
independent and impartial authority or judicial body, with a wide variety of possible alternatives to
institutional care and deprivation of liberty, which are listed in a non-exhaustive manner in article
40 (4) of CRC, to assure that deprivation of liberty be used only as a measure of last resort and for
the shortest possible period of time (art. 37 (b) of CRC).
71. The Committee wishes to emphasize that the reaction to an offence should always be in
proportion not only to the circumstances and the gravity of the offence, but also to the age, lesser
culpability, circumstances and needs of the child, as well as to the various and particularly long-term
needs of the society. A strictly punitive approach is not in accordance with the leading principles
for juvenile justice spelled out in article 40 (1) of CRC (see paragraphs 5-14 above). The Committee
reiterates that corporal punishment as a sanction is a violation of these principles as well as of article
37 which prohibits all forms of cruel, inhuman and degrading treatment or punishment (see also the
Committee's general comment No. 8 (2006) (The right of the child to protection from corporal
punishment and other cruel or degrading forms of punishment)). In cases of severe offences by
children, measures proportionate to the circumstances of the offender and to the gravity of the
offence may be considered, including considerations of the need of public safety and sanctions. In
the case of children, such considerations must always be outweighed by the need to safeguard the
well-being and the best interests of the child and to promote his/her reintegration.
72. The Committee notes that if a penal disposition is linked to the age of a child, and there is
conflicting, inconclusive or uncertain evidence of the child's age, he/she shall have the right to the
rule of the benefit of the doubt (see also paragraphs 35 and 39 above).
73. As far as alternatives to deprivation of liberty/institutional care are concerned, there is a wide
range of experience with the use and implementation of such measures. States parties should benefit
from this experience, and develop and implement these alternatives by adjusting them to their own
culture and tradition. It goes without saying that measures amounting to forced labour or to torture
or inhuman and degrading treatment must be explicitly prohibited, and those responsible for such
illegal practices should be brought to justice.
74. After these general remarks, the Committee wishes to draw attention to the measures prohibited
under article 37 (a) of CRC, and to deprivation of liberty.
Prohibition of the death penalty
75. Article 37 (a) of CRC reaffirms the internationally accepted standard (see for example article
6 (5) of ICCPR) that the death penalty cannot be imposed for a crime committed by a person who
at that time was under 18 years of age. Although the text is clear, there are States parties that assume
that the rule only prohibits the execution of persons below the age of 18 years. However, under this
rule the explicit and decisive criteria is the age at the time of the commission of the offence. It
means that a death penalty may not be imposed for a crime committed by a person under 18
regardless of his/her age at the time of the trial or sentencing or of the execution of the sanction.
76. The Committee recommends the few States parties that have not done so yet to abolish the death
penalty for all offences committed by persons below the age of 18 years and to suspend the
execution of all death sentences for those persons till the necessary legislative measures abolishing
the death penalty for children have been fully enacted. The imposed death penalty should be
changed to a sanction that is in full conformity with CRC.
No life imprisonment without parole
77. No child who was under the age of 18 at the time he or she committed an offence should be
sentenced to life without the possibility of release or parole. For all sentences imposed upon children
the possibility of release should be realistic and regularly considered. In this regard, the Committee
refers to article 25 of CRC providing the right to periodic review for all children placed for the
purpose of care, protection or treatment. The Committee reminds the States parties which do
sentence children to life imprisonment with the possibility of release or parole that this sanction
must fully comply with and strive for the realization of the aims of juvenile justice enshrined in
article 40 (1) of CRC. This means inter alia that the child sentenced to this imprisonment should
receive education, treatment, and care aiming at his/her release, reintegration and ability to assume
a constructive role in society. This also requires a regular review of the child's development and
progress in order to decide on his/her possible release. Given the likelihood that a life imprisonment
of a child will make it very difficult, if not impossible, to achieve the aims of juvenile justice despite
the possibility of release, the Committee strongly recommends the States parties to abolish all forms
of life imprisonment for offences committed by persons under the age of 18.
F. Deprivation of liberty, including pretrial detention and post-trial incarceration
78. Article 37 of CRC contains the leading principles for the use of deprivation of liberty, the
procedural rights of every child deprived of liberty, and provisions concerning the treatment of and
conditions for children deprived of their liberty.
Basic principles
79. The leading principles for the use of deprivation of liberty are: (a) the arrest, detention or
imprisonment of a child shall be in conformity with the law and shall be used only as a measure of
last resort and for the shortest appropriate period of time; and (b) no child shall be deprived of
his/her liberty unlawfully or arbitrarily.
80. The Committee notes with concern that, in many countries, children languish in pretrial
detention for months or even years, which constitutes a grave violation of article 37 (b) of CRC. An
effective package of alternatives must be available (see chapter IV, section B, above), for the States
parties to realize their obligation under article 37 (b) of CRC to use deprivation of liberty only as
a measure of last resort. The use of these alternatives must be carefully structured to reduce the use
of pretrial detention as well, rather than "widening the net" of sanctioned children. In addition, the
States parties should take adequate legislative and other measures to reduce the use of pretrial
detention. Use of pretrial detention as a punishment violates the presumption of innocence. The law
should clearly state the conditions that are required to determine whether to place or keep a child
in pretrial detention, in particular to ensure his/her appearance at the court proceedings, and whether
he/she is an immediate danger to himself/herself or others. The duration of pretrial detention should
be limited by law and be subject to regular review.
81. The Committee recommends that the State parties ensure that a child can be released from
pretrial detention as soon as possible, and if necessary under certain conditions. Decisions regarding
pretrial detention, including its duration, should be made by a competent, independent and impartial
authority or a judicial body, and the child should be provided with legal or other appropriate
assistance.
Procedural rights (art. 37 (d))
82. Every child deprived of his/her liberty has the right to prompt access to legal and other
appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her
liberty before a court or other competent, independent and impartial authority, and to a prompt
decision on any such action.
83. Every child arrested and deprived of his/her liberty should be brought before a competent
authority to examine the legality of (the continuation of) this deprivation of liberty within 24 hours.
The Committee also recommends that the States parties ensure by strict legal provisions that the
legality of a pretrial detention is reviewed regularly, preferably every two weeks. In case a
conditional release of the child, e.g. by applying alternative measures, is not possible, the child
should be formally charged with the alleged offences and be brought before a court or other
competent, independent and impartial authority or judicial body, not later than 30 days after his/her
pretrial detention takes effect. The Committee, conscious of the practice of adjourning court
hearings, often more than once, urges the States parties to introduce the legal provisions necessary
to ensure that the court/juvenile judge or other competent body makes a final decision on the charges
not later than six months after they have been presented.
84. The right to challenge the legality of the deprivation of liberty includes not only the right to
appeal, but also the right to access the court, or other competent, independent and impartial authority
or judicial body, in cases where the deprivation of liberty is an administrative decision (e.g. the
police, the prosecutor and other competent authority). The right to a prompt decision means that a
decision must be rendered as soon as possible, e.g. within or not later than two weeks after the
challenge is made.
Treatment and conditions (art. 37 (c))
85. Every child deprived of liberty shall be separated from adults. A child deprived of his/her liberty
shall not be placed in an adult prison or other facility for adults. There is abundant evidence that the
placement of children in adult prisons or jails compromises their basic safety, well-being, and their
future ability to remain free of crime and to reintegrate. The permitted exception to the separation
of children from adults stated in article 37 (c) of CRC, "unless it is considered in the child's best
interests not to do so", should be interpreted narrowly; the child's best interests does not mean for
the convenience of the States parties. States parties should establish separate facilities for children
deprived of their liberty, which include distinct, child-centred staff, personnel, policies and practices.
86. This rule does not mean that a child placed in a facility for children has to be moved to a facility
for adults immediately after he/she turns 18. Continuation of his/her stay in the facility for children
should be possible if that is in his/her best interest and not contrary to the best interests of the
younger children in the facility.
87. Every child deprived of liberty has the right to maintain contact with his/her family through
correspondence and visits. In order to facilitate visits, the child should be placed in a facility that is
as close as possible to the place of residence of his/her family. Exceptional circumstances that may
limit this contact should be clearly described in the law and not be left to the discretion of the
competent authorities.
88. The Committee draws the attention of States parties to the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty, adopted by the General Assembly in its resolution
45/113 of 14 December 1990. The Committee urges the States parties to fully implement these rules,
while also taking into account as far as relevant the Standard Minimum Rules for the Treatment of
Prisoners (see also rule 9 of the Beijing Rules). In this regard, the Committee recommends that the
States parties incorporate these rules into their national laws and regulations, and make them
available, in the national or regional language, to all professionals, NGOs and volunteers involved
in the administration of juvenile justice.
89. The Committee wishes to emphasize that, inter alia, the following principles and rules need to
be observed in all cases of deprivation of liberty:
- Children should be provided with a physical environment and accommodations which
are in keeping with the rehabilitative aims of residential placement, and due regard must be given
to their needs for privacy, sensory stimuli, opportunities to associate with their peers, and to
participate in sports, physical exercise, in arts, and leisure time activities;
- Every child of compulsory school age has the right to education suited to his/her needs and
abilities, and designed to prepare him/her for return to society; in addition, every child should, when
appropriate, receive vocational training in occupations likely to prepare him/her for future
employment;
- Every child has the right to be examined by a physician upon admission to the
detention/correctional facility and shall receive adequate medical care throughout his/her stay in the
facility, which should be provided, where possible, by health facilities and services of the
community;
- The staff of the facility should promote and facilitate frequent contacts of the child with the wider
community, including communications with his/her family, friends and other persons or
representatives of reputable outside organizations, and the opportunity to visit his/her home and
family;
- Restraint or force can be used only when the child poses an imminent threat of injury to him or
herself or others, and only when all other means of control have been exhausted. The use of restraint
or force, including physical, mechanical and medical restraints, should be under close and direct
control of a medical and/or psychological professional. It must never be used as a means of
punishment. Staff of the facility should receive training on the applicable standards and members
of the staff who use restraint or force in violation of the rules and standards should be punished
appropriately;
- Any disciplinary measure must be consistent with upholding the inherent dignity of the juvenile
and the fundamental objectives of institutional care; disciplinary measures in violation of article 37
of CRC must be strictly forbidden, including corporal punishment, placement in a dark cell, closed
or solitary confinement, or any other punishment that may compromise the physical or mental health
or well-being of the child concerned;
- Every child should have the right to make requests or complaints, without censorship as to the
substance, to the central administration, the judicial authority or other proper independent authority,
and to be informed of the response without delay; children need to know about and have easy access
to these mechanisms;
- Independent and qualified inspectors should be empowered to conduct inspections on a regular
basis and to undertake unannounced inspections on their own initiative; they should place special
emphasis on holding conversations with children in the facilities, in a confidential setting.
V. THE ORGANIZATION OF JUVENILE JUSTICE
90. In order to ensure the full implementation of the principles and rights elaborated in the previous
paragraphs, it is necessary to establish an effective organization for the administration of juvenile
justice, and a comprehensive juvenile justice system. As stated in article 40 (3) of CRC, States
parties shall seek to promote the establishment of laws, procedures, authorities and institutions
specifically applicable to children in conflict with the penal law.
91. What the basic provisions of these laws and procedures are required to be, has been presented
in the present general comment. More and other provisions are left to the discretion of States parties.
This also applies to the form of these laws and procedures. They can be laid down in special
chapters of the general criminal and procedural law, or be brought together in a separate act or law
on juvenile justice.
92. A comprehensive juvenile justice system further requires the establishment of specialized units
within the police, the judiciary, the court system, the prosecutor's office, as well as specialized
defenders or other representatives who provide legal or other appropriate assistance to the child.
93. The Committee recommends that the States parties establish juvenile courts either as separate
units or as part of existing regional/district courts. Where that is not immediately feasible for
practical reasons, the States parties should ensure the appointment of specialized judges or
magistrates for dealing with cases of juvenile justice.
94. In addition, specialized services such as probation, counselling or supervision should be
established together with specialized facilities including for example day treatment centres and,
where necessary, facilities for residential care and treatment of child offenders. In this juvenile
justice system, an effective coordination of the activities of all these specialized units, services and
facilities should be promoted in an ongoing manner.
95. It is clear from many States parties' reports that non-governmental organizations can and do play
an important role not only in the prevention of juvenile delinquency as such, but also in the
administration of juvenile justice. The Committee therefore recommends that States parties seek the
active involvement of these organizations in the development and implementation of their
comprehensive juvenile justice policy and provide them with the necessary resources for this
involvement.
VI. AWARENESS-RAISING AND TRAINING
96. Children who commit offences are often subject to negative publicity in the media, which
contributes to a discriminatory and negative stereotyping of these children and often of children in
general. This negative presentation or criminalization of child offenders is often based on
misrepresentation and/or misunderstanding of the causes of juvenile delinquency, and results
regularly in a call for a tougher approach (e.g. zero-tolerance, three strikes and you are out,
mandatory sentences, trial in adult courts and other primarily punitive measures). To create a
positive environment for a better understanding of the root causes of juvenile delinquency and a
rights-based approach to this social problem, the States parties should conduct, promote and/or
support educational and other campaigns to raise awareness of the need and the obligation to deal
with children alleged of violating the penal law in accordance with the spirit and the letter of CRC.
In this regard, the States parties should seek the active and positive involvement of members of
parliament, NGOs and the media, and support their efforts in the improvement of the understanding
of a rights-based approach to children who have been or are in conflict with the penal law. It is
crucial for children, in particular those who have experience with the juvenile justice system, to be
involved in these awareness-raising efforts.
97. It is essential for the quality of the administration of juvenile justice that all the professionals
involved, inter alia, in law enforcement and the judiciary receive appropriate training on the content
and meaning of the provisions of CRC in general, particularly those directly relevant to their daily
practice. This training should be organized in a systematic and ongoing manner and should not be
limited to information on the relevant national and international legal provisions. It should include
information on, inter alia, the social and other causes of juvenile delinquency, psychological and
other aspects of the development of children, with special attention to girls and children belonging
to minorities or indigenous peoples, the culture and the trends in the world of young people, the
dynamics of group activities, and the available measures dealing with children in conflict with the
penal law, in particular measures without resorting to judicial proceedings (see chapter IV, section
B, above).
VII. DATA COLLECTION, EVALUATION AND RESEARCH
98. The Committee is deeply concerned about the lack of even basic and disaggregated data on, inter
alia, the number and nature of offences committed by children, the use and the average duration of
pretrial detention, the number of children dealt with by resorting to measures other than judicial
proceedings (diversion), the number of convicted children and the nature of the sanctions imposed
on them. The Committee urges the States parties to systematically collect disaggregated data
relevant to the information on the practice of the administration of juvenile justice, and necessary
for the development, implementation and evaluation of policies and programmes aiming at the
prevention and effective responses to juvenile delinquency in full accordance with the principles and
provisions of CRC.
99. The Committee recommends that States parties conduct regular evaluations of their practice
of juvenile justice, in particular of the effectiveness of the measures taken, including those
concerning discrimination, reintegration and recidivism, preferably carried out by independent
academic institutions. Research, as for example on the disparities in the administration of juvenile
justice which may amount to discrimination, and developments in the field of juvenile delinquency,
such as effective diversion programmes or newly emerging juvenile delinquency activities, will
indicate critical points of success and concern. It is important that children are involved in this
evaluation and research, in particular those who have been in contact with parts of the juvenile
justice system. The privacy of these children and the confidentiality of their cooperation should be
fully respected and protected. In this regard, the Committee refers the States parties to the existing
international guidelines on the involvement of children in research.
Note:
1. Note that the rights of a child deprived of his/her liberty, as recognized in CRC, apply with
respect to children in conflict with the law, and to children placed in institutions for the purposes
of care, protection or treatment, including mental health, educational, drug treatment, child
protection or immigration institutions. [Back]
Documentary Note: Extracted from "United Nations, Human Rights Instruments: Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.9 (Vol.II), 27 May 2008".
