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  • Rights of the Child, The
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Rights of the Child, The

Annotated Materials

FROM £90.00

A companion volume to Alistair MacDonald’s The Rights of the Child: Law and Practice (Family Law, 2011) and contains fully annotated versions of the primary and secondary source material which is cited and discussed in the prior volume

This new title is a companion volume to Alistair MacDonald’s The Rights of the Child: Law and Practice (Family Law, 2011) and contains fully annotated versions of the primary and secondary source material which is cited and discussed in the prior volume.

 An invaluable reference work for all child law practitioners including barristers, solicitors, social workers, CAFCASS officers, probation officers and the Youth Offending Service, local authorities, law students and academics.
  • Introduction
  • Universal Declaration of Human Rights
  • United Nations Convention on the Rights of the Child
     United Nations Convention on the Rights of the Child Optional Protocol I
     United Nations Convention on the Rights of the Child Optional Protocol II
  • International Covenant on Civil and Political Rights
  • International Covenant on Economic, Social and Cultural Rights
  • UN Convention against Torture
  • UN Convention on the Elimination of All Forms of Racial Discrimination
  • UN Convention on the Elimination of All Forms of Discrimination against Women
  • UN Convention on the Rights of Persons with Disabilities
  • UN Convention against Discrimination in Education
  • ILO Minimum Age Convention
  • ILO Worst Forms of Child Labour Convention
  • Geneva Convention III
     Geneva Convention IV
  • The Hague Convention on the Civil Aspects of International Child Abduction
  • The European Convention on Human Rights
  • Human Rights Act 1998
  • Revised European Social Charter
  • Charter of the Fundamental Rights of the European Union
  • UN Standard Minimum Rules for the Administration of Juvenile Justice
  • UN Standard Rules for the Protection of Juveniles Deprived of their Liberty
  • Standard Rules on the Equalisation of Opportunities for Persons with Disabilities
  • UN Guidelines for the Prevention of Juvenile Delinquency
  • UN Guidelines for the Alternative Care of Children
  • UNCRC General Comment 1 – The Aims of Education;
     UNCRC General Comment 2 – The Role of Independent Human Rights Institutions;
     UNCRC General Comment 3 – HIV/AIDS and the Rights of the Child;
     UNCRC General Comment 4 – Adolescent Health;
     UNCRC General Comment 5 – General Measures of Implementation for the CRC;
     UNCRC General Comment 6 – Treatment of Unaccompanied and Separated Children outside their Country of Origin;
     UNCRC General Comment 7 – Implementing Child Rights in Early Childhood;
     UNCRC General Comment 8 – The Right of the Child to Protection from Corporal Punishment and other Cruel or Degrading forms of Punishment;
     UNCRC General Comment 9 – The Rights of Children with Disabilities;
     UNCRC General Comment 10 – Children’s Rights in Juvenile Justice;
     UNCRC General Comment 11 – Indigenous Children and the Rights under the Convention;
     UNCRC General Comment 12 – The Right of the Child to be Heard;
     UNCRC General Comment 13 – The Right of the Children to Freedom from all forms of Violence.
Introduction

One of the aims of writing The Rights of the Child – Law and Practice was to reflect the increasing recognition in the domestic jurisprudence of the significance of the United Nations Convention on the Rights of the Child (‘UNCRC’) and other international instruments relevant to the protection and advancement of children’s rights. In R (Axon) v Secretary of State for Health and the Family Planning Association Silber J, having reviewed the rights of children enshrined in the UNRC had felt compelled to observe in 2006 that there had been a ‘change in the landscape of family matters, in which the rights of children are becoming increasingly important.’ Between 2006 and 2011, when The Rights of the Child – Law and Practice was published, the higher and appellate courts increasingly relied on the UNRC.

In 2006, in Re D (A Child) (Abduction: Custody Rights) the court noted that the principle, enshrined in Art 11(2) of the Brussels II Revised Regulation, that a child is given the opportunity to be heard during proceedings unless it is inappropriate having regard to his or her age or maturity is ‘of universal application and consistent with our international obligations under Art 12 of the United Nations Convention on the Rights of the Child’. In 2008 in Re B (Children) (Sexual Abuse: Standard of Proof) Baroness Hale again referred to the Convention in recognising the special protection afforded to the family in a democratic society . In R (E) v Office of the Schools Adjudicator Lord Mance made specific reference to Art 3 of the CRC, noting that ‘under Art 3 of the United Nations Convention on the Rights of the Child 1989 it is the best interests of the child which the United Kingdom is obliged to treat as a primary consideration’. In 2011 in ZH v (Tanzania) (FC) v Secretary of State for the Home Department, the Supreme Court relied on the terms of Art 3(1) of the UNCRC when considering the question of what weight should be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the United Kingdom, Baroness Hale holding that:

‘For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3(1) of the UNCRC:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. The immigration authorities were at first excused from this duty, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters. But that reservation was lifted in 2008 and, as a result, section 55 of the Borders, Citizenship and Immigration Act 2009 now provides that, in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions “are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom” … Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as “a primary consideration”.’

Since the decision in ZH v (Tanzania) (FC) v Secretary of State for the Home Department in 2011, the reliance by the higher and appellate courts on the UNCRC has been maintained.

In S v L the Supreme Court relied on the UNRC for support for the proposition that, in relation to adoption, the child’s best interest should be paramount. In Re E (Children) (Abduction:Custody Appeal) the Supreme Court referred to Art 3(1) of the UNRC when interpreting the best interests provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 and Council Regulation (EC) 2201/2003 (Brussels II Revised), Lord Wilson noting that the UNRC Art 3(1) requires that in all actions concerning children, their best interests shall be a primary consideration. In Re B (Care Proceedings: Appeal) the Supreme Court relied heavily on the provisions of the UNRC in articulating the need for adoption orders to be orders of last resort where nothing else will do, Lord Neuberger PSC stating in terms that the Adoption and Children Act 2002 must be construed and applied bearing in mind the provisions of the UNRC. In addition to these decisions of the Supreme Court, the UNRC has been cited, either in argument or in judgment, in many other cases since 2011.

In addition to these domestic developments, the General Assembly of the United Nations has now adopted a Resolution on the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure. This third Optional Protocol to the UNRC provides a mechanism whereby communications may be submitted by or on behalf of an individual or group of individuals within the jurisdiction of a State party who claim to be victims of a violation by that State party of any of the rights set forth in the UNCRC or its first two Optional Protocols. It was opened for signature on 28 February 2012 and will come into force three months after the tenth State Party to deposit an instrument of ratification or accession does so. The United Kingdom has yet to sign or ratify the Optional Protocol. The third Optional Protocol for the first time permits children to take complaints directly to the United Nations Committee on the Rights of the Child and represents a significant step forward in children becoming moral actors in respect of their own rights.

This companion volume to The Rights of the Child – Law and Practice (indeed, in all but name the second volume of the original work) aims to make more familiar and more accessible the cardinal international, European and domestic instruments and materials relevant to the advancing of rights based arguments by and on behalf of children before the domestic courts and with respect to the decisions of domestic administrative bodies. Some of the material covered in this work will be well known to readers, including the European Convention on Human Rights and Fundamental Freedoms and the Human Rights Act 1998. Some material will be less familiar, for example the Geneva Conventions and the Revised European Social Charter.

The Rights of the Child – Annotated Materials sets out each of the cardinal instruments which are the subject of extensive commentary in The Rights of the Child – Law and Practice. Each of the cardinal instruments set out in this work is annotated to allow the reader easily to indentify in respect of each provision of a given instrument the cardinal principles of interpretation and application of that provision. Further, the annotation in this volume is structured by reference to The Rights of the Child – Law and Practice to permit the reader to look in even greater depth at the provision in question.

The cross references to The Rights of the Child – Law and Practice are provided in bold as an integral part of the annotation. Thus, for example, the reference to [RCLP para 11.53] in the annotations to Art 10(1) of the European Convention on Human Rights and Fundamental Freedoms 1950 is a reference to paragraph 11.53 in The Rights of the Child – Law and Practice, that paragraph providing detailed commentary on the positive duty on the State under Art 10(1) of the ECHR to take steps to ensure that the right to freedom of expression is protected from interference by private individuals as well as by the State. Note that the annotations contained in this work constitute a summary of the basic principles of interpretation and application relevant to the provision in question. Reference should be made to the relevant paragraph in The Rights of the Child – Law and Practice for the full exposition of the provision or principle with which the reader is concerned.

As with The Rights of the Child – Law and Practice, within the annotations contained in this book international, regional and domestic statutes and case law are cited in the normal fashion by name, date and reference if appropriate. Additional source material which may be unfamiliar to some readers is also relied on. Treaties such as the Convention on the Rights of the Child and the Vienna Convention on the Law of Treaties are cited by their full name or appropriate acronym and reference number where appropriate. Declarations such as the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief are likewise cited by the full name or appropriate acronym and reference number where appropriate.

The General Comments of relevant human rights committees of the United Nations, including the Committee on the Rights of the Child are cited by committee, name and their United Nations documentation reference system number, for example: ‘Committee on the Rights of the Child General Comment No 10 Children’s Rights in Juvenile Justice CRC/C/GC/10’. References in the footnotes to particular countries followed by a UN documentation reference system citation are references to the concluding observations of the Committee on the Rights of the Child on the reports submitted to the Committee by that state, for example: ‘United Kingdom of Great Britain and Northern Ireland (2002) CRC/C/15/Add188 or United Kingdom of Great Britain and Northern Ireland (2008) CRC/C/GBR/CO/4’. Session reports of the relevant UN Committees are cited by reference to their committee, date and UN documentation reference system number, for example: ‘Committee on the Rights of the Child Report on the Fifth Session (1994) CRC/C/24’.

The cardinal instruments contained and annotated in this work underpin the rights of children, which rights in turn provide a comprehensive and consistent normative framework within which all children can grow through childhood as subjects entitled to the benefit of universally accepted legal norms to the point of being able to take full responsibility as free, rational agents for their own system of ends. As with The Rights of the Child – Law and Practice, the aim of this work is to assist in facilitating the implementation of children’s rights through the day to day practice of the law, as well as within the myriad instances of daily administrative decision making which touch and concern children.

The central message of The Rights of the Child – Law and Practice was that the UNRC, and associated international instruments can be relied on before the domestic courts, tribunals and decision making bodies of this jurisdiction notwithstanding that the Convention has not been formally incorporated into domestic law. The case law that has issued from our higher and appellate courts since 2011 suggests that this message is a valid one. In this regard, Fortin’s observation in Children’s Rights and the Developing Law that ‘practitioners and the judiciary are now not only far more open to arguments based on children’s rights, but also more willing to consider international instruments as an important source of guidance over standards to be reached by domestic law’ appears to be holding true. It is hoped that this book will make a modest contribution to keeping this trend alive.

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