APPENDIX C

An Evaluation of the extent to which the Northern Ireland proposals for a Bill of Rights comply with international children’s rights standards

Dr Ursula Kilkelly, Faculty of Law, University College Cork

Commissioned by Children’s Law Centre and Save the Children.

INTRODUCTION AND BACKGROUND

The progress and direction of the Bill of Rights project has been a source of considerable disquiet among the children’s rights sector in Northern Ireland. A commitment to consult widely with the sector and with children and young people themselves suggested a commitment to listen to what children and young people and their representatives had to say about children’s rights in the Bill of Rights. This was reflected in the considerable attention given to children’s rights in the Commission’s Consultation Document , ‘Making a Bill of Rights for Northern Ireland’ (September 2001). Subsequently, however, this commitment to including meaningful provision for children’s rights in the Bill of Rights has been called into question not least due to the removal of significant rights from the Commission’s latest proposals (Progressing a Bill of Rights for Northern Ireland’ (April 2004). In the light of this, this document aims to evaluate the extent to which both drafts of the Bill of Rights complies with international standards, notably the Convention on the Rights of the Child, with regard to three issues:

1. the rights contained in the original proposals for a Bill of Rights;
2. the rights contained in the current proposals for a Bill of Rights;
3. submissions made to the Commission on these proposals.

It is not proposed to consider here questions regarding the Commission’s mandate under the Good Friday Agreement except to note that a very narrow and restrictive interpretation of that mandate may see children’s rights limited in, or excluded from the Bill of Rights altogether. This is worth bearing in mind particularly in relation to understanding how the Commission appeared to move from a position of significant support for a comprehensive and detailed children’s rights provision, to one which saw significant parts of that provision removed and the potential of the Bill of Rights to protect children’s rights undermined.


THE ORIGINAL PROPOSALS FOR A BILL OF RIGHTS*

After an initial period of consultation (discussed further below), the Commission published its preliminary proposals, ‘Making a Bill of Rights for Northern Ireland: A Consultation by the Northern Ireland Human Rights Commission’ in September 2001. The proposals contained 14 substantive clauses including a Preamble and several interpretive and procedural provisions. Clause 10 was a dedicated children’s rights provision, which is discussed in detail below. Clause 9 made provision for family life and private life by reiterating Article 8 ECHR and Clause 11 made additional, specific provision for the right to effective and appropriate education for all, protection from discrimination in education and human rights education. In relation to the former, Clause 11(a) recognised the right of everyone to an effective education directed at the person’s full development and effective participation in the community (para 2), guaranteed the right of parents to ensure their children’s education and teaching in conformity with their convictions and their right to choose the type of education their children receive (para 3) and required the State to provide financial and other support to schools (para 4). Clause (b) provided for non-discrimination regarding school admission (para 1) and the criteria used (para 2), and provided that all forms of education shall be directed to the promotion of human rights, dignity of the person and respect for diversity (clause (c)).

In addition, children’s rights were mentioned elsewhere in the Bill of Rights in the following terms:
• The Preamble (Clause 1) expressed a commitment to the better protection of the human rights of all men, women and children in Northern Ireland;
• Clause 2 (‘Democratic Rights’) guaranteed the right of 17 year olds to vote (reducing it from the current age of 18 years), and
• Clause 4 (‘Equality and non-discrimination’) guaranteed the right to equality and to enjoy rights without discrimination inter alia on the grounds of birth or other status. Paragraph 3 of Clause 4 provided that the State shall take all necessary measures to promote the equal enjoyment, benefit and protection of all human rights and fundamental freedoms for women and girls.

No express reference to the rights of children was made in the remaining Clauses of the initial draft Bill of Rights, although insofar as they secure rights to ‘everyone’ they may be said to apply to children and young people as much as they do to adults (although this was not expressly stated anywhere). Nevertheless, children’s rights were absent in express form from Clause 3 (‘Rights concerning identity and communities’); Clause 5 (‘The rights of women’); Clause 6 (‘rights to life, freedom from torture, freedom from slavery and forced labour’); Clause 7 (‘Criminal justice and administrative justice’) with the exception of the reiteration of the reference to privacy taken from Article 6(1) ECHR; Clause 8 (‘The rights of victims’) ; Clause 12 (‘Rights to freedom of thought, expression, information and association’); Clause 13 (‘Language rights’) and Clause 14 (‘Social, economic and environmental rights’).


The Dedicated Children’s Rights Provision

Clause 10, the dedicated children’s rights provision, contained 11 paragraphs as follows:
(a) general provisions: this provision defined a child as anyone under 18 years (1); required the best interests principle to be the paramount consideration for all actions taken concerning children (2) and required public bodies to carry out their functions in relation to children in accordance with the provisions of the UNCRC (3);
(b) participation rights: This provided for the child’s right to express his/her views and have them given due weight (1), the right to participate directly or indirectly in legal and administrative proceedings including the right to representation (2), and the right to participate and play a constructive role in the society of Northern Ireland particularly through collaboration, co-operation and the forming of partnerships with children (3);
(c) the family: this recognised every child’s right to grow up in a safe and stable family environment (1) and the right to state assistance and special protection to this end, provided for support for children leaving care (2); it also recognised the right of every child to contact and personal relations with parents and family members except where it is contrary to his/her best interests (3);
(d) protection rights: This recognised the right to be protected from all forms of abuse, ill-treatment, bullying and neglect (1) including the taking of all measures to identify, report and investigate such ill-treatment and treat victims (2).
(e) children in conflict with the law: this provided for an age of criminal responsibility of 12 years with a commitment to keeping it under review and to continue to develop alternative ways of dealing with children in conflict with the law in away which diverts them from the criminal process (1); the right to be treated in a manner consistent with respect for dignity, human rights and in accordance with age and understanding (2); a guarantee of minimum rights including the right to have criminal charges explained in appropriate language, the right to a defence, the right to have an appropriate adult present, the right to be tried in an appropriate manner and setting, the right to have measures taken to ensure participation and understanding of criminal proceedings and the right to have privacy respected at all stages (3); the right to be detained as an exceptional measure of last resort for the shortest appropriate period of time and a requirement for the state to develop alternatives to custody (4); the right of detained children to be treated with respect and in an age appropriate manner (5); and minimum rights for detained children including the right to be separated from adults, to prompt access to legal and other assistance; to privacy and respect for correspondence; to maintain direct and regular contact with family members and the right to access the national educational curriculum (6);
(f) children with disabilities: this provision provided for the right of such children to enjoy an independent and fulfilling life, to special care and assistance, to assessment and appropriate services;
(g) right to play: this provided for the right to appropriate play and leisure and participation in sport, cultural, recreational and artistic activities;
(h) health care: this recognised the right to the highest attainable standard of health and access to appropriate health care services (1), required the state to take appropriate measures to address children’s health problems and recognised the right to receive information, material and guidance on health matters (2) and the right to a standard of living adequate to the child’s full development and to material assistance to this end (3);
(i) education: this provided for the right to an effective education (1); required the state to take appropriate action to ensure education to children with special needs (2), provided specific procedural rights with respect to excluded children and that exclusions should only be imposed as a measure of last resort (3) and required the State to take measures to protect the safety of children in school and to guarantee their effective participation in education matters (4);
(j) children’s economic rights: this required the State to take measures to protect children from economic exploitation (1) and to a range of minimum rights and protections for children under school leaving age in employment (2);
(k) awareness about rights: this required the State to make the rights of children widely known and accessible to all, and to include human rights on the school curriculum and the training curricula of all those working with and on behalf of children.

While specific comments are made below (se also Kilkelly ‘Children’s Rights in the Bill of Rights: Meeting or Exceeding International Standards 52 (3 & 4) Northern Ireland Legal Quarterly (2001) 286-295 (copy attached)) , it is important to note at the outset that Clause 10 mirrored to a large extent the proposals of the Working Group on Children's Rights and was thus largely consistent with spirit and the letter of the Convention on the Rights of the Child. At the same time, it should be remembered that this treaty establishes minimum standards which are designed to be universally applicable. Thus, in order for the Bill of Rights to be relevant and specific to the particular circumstances of Northern Ireland these standards should be adapted and strengthened where possible. This happened with some provisions in the original proposals including the strengthening of the best interests principle from ‘primary’ (in art 3) to ‘paramount’ (in 10(a)(2)); introducing the right to participate and play a constructive role in society and requiring everyone working with children to co-operate and form partnerships with them (in 10(b)(3)) and raising the age of criminal responsibility to 12 while requiring that it be kept under review (in 10(e)(1)). Clause 10 also exceeds current international standards by providing expressly for the right to an effective education, requiring that every child has the right to education which respects their rights and needs and making specific provision for the rights of children who are excluded (in 10(i)(1-4)). The inclusion of the right to human rights education in the education Clause was also welcome (in 11(c)) although that section was been criticised for failing to be more innovative, reiterating the inadequate education provision in Article 2 of the First Protocol to the ECHR and focussing too much on the contentious issues within the Northern Ireland educational system (access to Irish language tuition, funding, 11 plus etc) See further Craig and Lundy ‘Education Rights in the Bill of Rights’ 52 (3 & 4) Northern Ireland Legal Quarterly (2001)325.

To understand more fully the compatibility of the current proposals with international law, as well as the evolution of the children’s rights provisions in the Bill of Rights generally, it is important to make some specific remarks about Article 10 of the original proposals:

Best Interests
The second paragraph in Clause 10 (a) read as follows:
In all actions concerning children, whether undertaken by public or private institutions, individuals or bodies, courts of law, administrative or legislative authorities, the best interests of the child shall be the paramount consideration and the following rights shall be interpreted as subject to that requirement. (emphasis mine)

This clause reflects Article 3 of the Convention on the Rights of the Child, but extends its protection by requiring the child’s best interests to be ‘the paramount’ rather than ‘a primary’ consideration. However, its final clause (in italics above) appears to limit the application of the principle to those areas within the scope of Clause 10 of the Bill of Rights. While its purpose is unclear, it appears to mean either that the best interests principle must not guide action in all areas, merely those covered by Clause 10, or alternatively that the exercise of the rights set out in the provision must be subject to the best interests principle. While neither limitation would ensure compatibility with the Article 3 principle, the latter possibility – subjecting children’s rights to be best interests principle - invokes far graver consequences for the potential of the Bill of Rights to protect children’s rights in Northern Ireland. Compatibility with the spirit and letter of Article 3 and the Convention as a whole required that this clause be removed from the proposed provision and fortunately, it does not appear in the Commission’s latest proposals. (See further below)

Implementation Provision
The third paragraph in section (a) of Clause 10 provides that
Public bodies shall carry out their functions in relation to children in accordance with the provisions of the UN Convention on the Rights of the Child and shall in addition take all reasonable steps to ensure for all children the following rights. (emphasis mine)

This provision (particularly those parts in italics) presents a number of difficulties. Firstly, it places two distinct obligations on public authorities with regard to the Children’s Convention and the Bill of Rights respectively. The obligations – to carry out functions and take steps to guarantee rights to children – do not apply to both sources of children’s rights and thus the obligation to implement children’s rights does not appear to apply to the Convention on the Rights of the Child, and vice versa. This approach is divisive and confusing, and insofar as it does not compel implementation of the Convention on the Rights of the Child is a wasted opportunity to reaffirm the importance of this Convention at national level. The current situation thus falls short of international standards, although they would be exceeded by imposing on public bodies or authorities the obligation both to act compatibly with and to implement the provisions of the Convention on the Rights of the Child and the Bill of Rights.

A second difficulty with the latter obligation in this provision is the fact that it requires authorities only to take steps that are ‘reasonable’ to guarantee the rights in Clause 10 to children. The equivalent provision in the Convention on the Rights of the Child (Article 4) requires states to do what is ‘appropriate’ to implement children’s rights, and it permits states to use the defence of resources only with regard to economic, social and cultural rights. Moreover, the Committee on the Rights of the Child has encouraged the use of the best interests principle to determine decisions regarding the allocation of resources. The recommendations of the Working Group had included neither the limitation of ‘reasonableness’, nor resources. While meeting the international standard here would require replacing the reference to what is ‘reasonable’ with the word ‘appropriate’, exceeding the international standard would be achieved by requiring public bodies to take ‘all appropriate measures to implement children’s rights to the highest standard’. (This clause has been removed in the latest Commission’s proposals. See further below.)

Guiding Principles
According to the Committee on the Rights of the Child, three principles must guide the implementation of children’s rights in all areas – non-discrimination which guarantees the rights of all children to enjoy their rights; the best interests principle and the child’s right to be heard. However, while the latter two provisions are found in Clause 10 of the Commission’s original proposals, the principle of non-discrimination is absent from this provision and the Bill as a whole. While a general non-discrimination principle is set out elsewhere in the Bill of Rights, where the prohibited grounds include 'age', the Commission’s original proposals do not contain a provision which reinforces the right of all children to equal treatment and the right to enjoy their rights without discrimination. In order to reflect the standard set by Article 2 CRC and the concerns of the Committee on the Rights of the Child in this area, it is necessary to include a child-specific principle of non-discrimination in the Bill of Rights.

It is also significant that the child’s right to be heard is not contained in the interpretive section of Clause 10 but in the section titled ‘participation rights’. However, according to the Committee on the Rights of the Child the fundamental character of this right requires that it apply as a general guiding principle with application to all areas of the child’s life. Full compliance with the Convention thus requires that the principle should be included in the interpretive section alongside the best interests principle (and the principle of non-discrimination).

Child’s right to special protection
The most fundamental omission from Clause 10, despite the recommendation of the Working Group, is the child’s right to special protection, care and assistance. This is set out in Article 3 para 2 Convention on the Rights of the Child and is one of the most commonly reiterated principles in general, human rights treaties including the International Covenant on Civil and Political Rights (Articles 23 and 24) and the International Covenant on Economic Social and Cultural Rights (Article 10). It is a minimum and necessary standard which addresses the special vulnerability of children and their corresponding right to care and protection. Its inclusion is required to ensure adherence to the highest international standards.


Questions posed by the Commission

When setting out its initial proposals, the Commission posed a series of questions about both the content of the children’s rights clause and the approach taken to children’s rights in the Bill of Rights. In particular, it asked two questions about the preferred approach to providing for children’s rights in the Bill of Rights. First, it asked whether there should be a special clause on children’s rights or whether they should be allocated as appropriate to relevant clauses throughout the document (this notion of mainstreaming appears to have been replaced by the restrictive view that mainstreaming involves providing for generic rights which make no specific reference to special groups). Second, it questioned whether the Bill should directly incorporate the CRC, whether it should include separately formulated rights providing for higher level of protection on some issues, or a combination of both approaches. The other questions posed related to
• whether the Bill of Rights should include the right of children to play a constructive role in society and if so, how this should be enforced (Questions 24 and 25)
• whether state support for children to enable them to grow up in a stable, safe and loving family environment should be framed as a positive right or a state obligation (Question 26);
• whether the age of criminal responsibility should be raised from 10 to 12 years (Question 27) and
• Whether the Bill of Rights should include an obligation to keep the age of criminal responsibility under review (Question 28).
The Commission did not ask any questions regarding the preferred content of Clause 9 (on family life) and asked only two questions on Clause 11 relating to whether the Bill should require States to ensure that admission criteria for schools ensure access to effective education (Question 29) and whether it should remove the specific exemption of teachers from the laws on religious and political discrimination in Northern Ireland (Question 30). The only other question relevant to the level of provision for children’s rights in the Bill was whether there was agreement on reducing the voting age to 17 years (Question 7). Further questions that were indirectly relevant were whether the Bill should create a special court to deal with violations of Bill of Rights provisions (Question 37), whether the Bill should contain a clause on remedies (Question 38), whether challenges should be capable of being brought under the Bill of Rights (Question 40) , whether there should be a mechanism for challenging the compatibility of proposed legislation with the Bill of Rights before the courts (Question 42) and what method should be adopted for entrenching and amending the Bill of Rights (Question 44).

While the Commission’s consultation document clearly asked everyone, through these questions, to state their preference with regard to both the content and the approach taken to children’s rights in the Bill of Rights, it is submitted that it is only by referring to international children’s rights law that the preferred approach can be identified. This approach is complicated by the fact that in some areas an approach may be not be required by international law, which may nonetheless indirectly mandate or support it. Clearly in such cases, it is open to the Commission to choose either approach as both are technically speaking compliant with international children’s rights law. At the same time, bearing in mind the Commission’s mandate to work towards greater protection of human rights in Northern Ireland and its commitment to strengthening the rights that children and young people already have under the UNCRC (Foreword, ‘What You Said’) it is to be expected that it would prefer the approach which maximises the potential of the Bill of Rights to vindicate the rights of children and young people in Northern Ireland.



Responses to the Commission’s Questions

The Commission received several hundred responses to its consultation document, 36% of which concerned the children’s rights provision. The Commission published a summary of these contributions (‘Summary of Submissions on a Bill of Rights’) in July 2003 giving an indication of the types of responses that had been made to the questions posed. The section below attempts to answer the questions in the Commission’s consultation document with reference to what international law requires or supports. It also details the replies submitted to the Commission’s questions by a wide variety of individuals, groups and bodies.

Question 7: The right to vote at 17 years

International Law: While the CRC is silent on the right to vote, Article 1 clearly allows the State to recognise that majority is achieved earlier than 18 years. Thus, while the Convention does not require the voting age to be established at 17 years, such an approach is not inconsistent with the Convention and would, it is submitted, be entirely in line with its objective to recognise the independent civil rights and freedoms of young people like those reflected in Article 12 (participation), Article 13 (freedom of expression); Article 15 (Freedom of association) and Article 17 (access to information).

Replies to the Commission: According to the Summary of Replies, only a few submissions supported changing the right to vote to 17 years with many more arguing that it would not be appropriate for a Bill of Rights to change the voting age. There did not appear to be disagreement on the substantive issue, therefore, merely whether such a provision could appropriately be included in the Bill of Rights. (See further below)

Question 22: the approach to be taken

International Law: The CRC is silent also on the approach which should be taken to the incorporation of children’s rights into national legislation or constitutional documents. The ECHR equally makes no specific demands on States in this regard. However, the Committee on the Rights of the Child, which monitors implementation of the CRC, has recommended that Convention rights should be given effect in the domestic legal system, that where possible standards higher than the Convention should be incorporated, and that effective remedies should be available for the vindication of children’s rights at domestic level. It would appear, therefore, that while it does not require it, international law mandates or supports an approach that secures the highest standards of protection to children, including setting standards that go beyond those set out in the CRC.

Replies to the Commission: According to the Summary of Replies, the vast majority of submissions supported either direct incorporation of the CRC or an approach which combined the CRC with higher standards relevant to Northern Ireland. (See further below)



Question 23: special clause or mainstreaming

International Law: The question of whether a special clause should be dedicated to children’s rights or whether they should be mainstreamed can be answered with regard to the approach adopted by the international community. In particular, it is clear that while children’s rights are contained in numerous general human rights treaties, the principal source of children’s rights in international law is the CRC, itself a dedicated children’s rights treaty. This is a high profile, highly recognisable and accessible source of children’s rights. The analogy is easily drawn, therefore, that in order to achieve in national terms what the Convention has achieved internationally in raising the profile of children’s rights and leading to enhanced awareness and protection of the rights of children and young people a clause or chapter dedicated exclusively to protecting the rights of children and young people is essential.

Replies to the Commission: It is not clear from the Summary of Replies whether the majority of submissions favoured mainstreaming or a separate clause on children’s rights although 22% of submissions preferred the latter with others appearing to express either no preference or a combination of both approaches. (See further below)


Questions 24 and 25: Right to play a constructive role in society/enforceability

International Law: It is clear that recognising the right of children to play a constructive role in society is a novel provision which goes beyond the express requirements of the Convention on the Rights of the Child. However, the Committee on the Rights of the Child has encouraged states to provide greater levels of protection to children wherever possible and given the relationship of this right to Article 12, the right to participate in all decisions concerning them, the concept of a broader civil right to participate is entirely in line with the objectives of this provision and related CRC provisions (Articles 13-17) . It is also consistent with the practice in many jurisdictions to establish a children’s parliament or a children’s advisory group to parliament, or to work in other ways to promote good citizenship among children.

It is not clear what concern the Commission is addressing with its question as to the enforceability of this right and it appears to reflect a lack of understanding of what the concept of playing a constructive role in society might involve or have the potential to achieve. This is despite the fact that the duty to consult is well established under s 75 of the Northern Ireland Act, 1998, and the fact that the remainder of the proposed provision in Clause 10, which requires the State to form partnerships with children, helps to answer the Commission’s own question. Moreover, the decision to raise the question of the right’s enforceability is also curious considering that it is only raised with respect to this particular right. No other provision in the draft document is questioned in this way.

Replies to the Commission: Submissions on the inclusion of this right appeared from the Summary of Replies to be largely positive and supportive of this innovative right although many recognise such participation as both a right and a responsibility with both positive and negative effects for children. Moreover, in relation to the enforceability question, submissions identified a range of novel ways of enforcing the provision including making its monitoring a function of the Children’s Commissioner, using the s 75 mechanism, developing a children’s parliament or enforcing the right through citizenship education. According to the Summary of Submissions, the Commission’s scepticism that the enforceability of the right posed a threat to the viability of the right itself has little if any support among the submissions received. (Despite this, the right was removed from the revised proposals. See further below).

Questions 27 and 28: Age of Criminal Responsibility/kept under review

International Law: While international law does not specify at what age criminal responsibility should apply, the UN Standard Minimum Rules for the Administration of Juvenile Justice provides the age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. This is further supported by Article 40 CRC and the UN Guidelines for the Prevention of Juvenile Delinquency which advocate an approach which diverts children away from the criminal process. So, while reducing the age from 12 to 10 is not required by international law, it is nonetheless entirely consistent with the positive approaches advocated by international standards in this area. It is also strongly supported by the age at which criminal responsibility is set in other European countries. The duty to keep the age under review is to be welcomed as a positive innovation designed to give the Bill of Rights an evolutive quality in this area. It is, also, entirely consistent with international standards in youth justice.

Replies to the Commission: Replies to question 27 appeared to support the proposal to set the age at 12, although some submitted that it should be raised to 14. A small number of groups appeared to prefer the retention of 10 years with some objecting to the use of the Bill of Rights to increase the age. According to the Summary of Replies, there was almost unanimous support for the Clause to keep the age of criminal responsibility under review.

Other Submissions

Submissions received by the Commission also expressed support for other parts of the draft proposals. For example, provision for the rights of children with disabilities, the right to play, the right to health care, the right to education, economic rights of children (poverty and economic exploitation) and children’s awareness of their rights. According to the Summary of Submissions, there was broad support for the inclusion of these rights as a minimum, with many organisations recommending greater levels of protection for children in a number of areas. For example, it was suggested that the section on children with disabilities should be further strengthened (including the right to be consulted/enjoy effective participation); the right to play could be widened to include the right to play for fun; the right to health care should include the right to access medical records and personal information and a state duty to address problems of alcohol, tobacco and drugs, and a strengthening of the duty to make the rights of children ‘widely known and accessible to all’.

The vast majority of general submissions supported putting a strong enforcement mechanism in the Bill of Rights to make its rights enforceable and its protection effective. Clear support was expressed for the idea of a special human rights court (Question 37), making an effective remedy available (Question 38), adopting a broad based right to challenge rights violations (Questions 40 and 41) and a wide range of proposals was made with regard to the methods of entrenching and amending the Bill of Rights (Question 44).


THE REVISED PROPOSALS

The Commission’s Approach?

In April 2004, the Commission published a progress report (‘Progressing a Bill of Rights for Northern Ireland: An Update’) in order to ‘respond positively to the various comments received about its consultation paper’ and to ‘give an up-to-date account of developments on the Bill of Rights process’.

Among the introductory comments made by the Commission in this document was a reiteration of its position that any provisions of a Bill of Rights for Northern Ireland must be compatible not only with the ECHR, but with other international human rights standards to which the British and Irish governments are committed. While asserting that it would be impractical to attempt to incorporate the full range of international standards into the Bill of Rights it noted that there are ‘some general trends in recent international developments, both within the UN and in Europe, notably the European Union’s Charter of Fundamental Rights, that provide a useful foundation for a specific Northern Ireland Bill (of Rights)’. (p 11) Among these trends, the Commission identified the consensus about the indispensable nature of social and economic rights, the need for positive action to ensure effective equality for previous disadvantaged groups and the need for specific protection for ethnic, religious and linguistic communities. The Commission asserted that it was better to follow these general trends in the development of a specific Northern Ireland Bill than to attempt to incorporate substantial sections of a number of international conventions. It went on to explain that accordingly it had chosen to incorporate within the Bill of Rights only two treaties, including the UN Convention on the Rights of the Child (pp 11-12) It can thus be inferred from this decision that the Commission has identified children as a ‘disadvantaged group’ worthy of special protection.

This notwithstanding, the Commission has revised its proposals on children’s rights substantially between 2001 and 2004 with fundamental and basic provisions being removed. According to the Commission, its earlier proposals had been widely criticised inter alia because they gave ‘undue prominence to the rights of children and insufficient attention to other disadvantaged and vulnerable groups’. (at p 14) Not only does this reveal an inconsistency in the Commission’s own approach, it is certainly not apparent from the Commission’s document summarising the submissions received (see above) that such widespread criticism was made of its children’s rights proposals. Moreover, the Commission appears to have given extraordinary weight to this criticism compared to the variety of submissions received in support of the children’s rights provisions (and indeed recommending their further strengthening) as well as its own view that children represent a disadvantaged group. Moreover, the extent to which this criticism appears to have influenced the Commission’s entire approach in this area is a worrying sign not just for children’s rights in Northern Ireland but for the integrity of the Bill of Rights (consultation) process as a whole. In relation to the former, the criticism that children’s rights were ‘overrepresented’ in the initial proposals has, it appears, led to both the dramatic editing and the significant watering down of the provisions on children’s rights to the extent that they now offer children less protection in fundamental areas than the Convention on the Rights of the Child, the ECHR the EU Charter of Fundamental Rights and Freedoms and other basic international standards. It is difficult to understand how the decision to react to such criticism could justify the taking of measures whose result is to undermine the entire potential of the Bill of Rights of children particularly when so many submissions were made in support of these provisions. Moreover, in relation to the integrity of the consultation process, it is difficult to see the consistency between the submissions made by a wide variety of groups including children themselves in favour of maintaining or strengthening the proposed protection for children’s rights, and the changes made between the initial and the revised proposals whose effect is to significantly undermine that protection.


Compatibility of the Revised Proposals with International Law

The revised document makes a number of references to the rights of children and young people and contains other relevant provisions. These are evaluated below in terms of their compatibility with the CRC and other international instruments on children’s rights.

Section 1 Interpretation

Section 1(1)(c) of the revised proposals provides that a court, tribunal or other body, when interpreting the Bill of Rights must … have due regard to international law and practice and to the law and practice of other countries’. The requirement that such bodies have due regard to international law in both binding and non-binding forms is welcome given that it reflects considerable consensus and will largely reflect best practice. However, it is difficult to understand what logic or legal basis is to be found for requiring the Northern Ireland courts to have regard to law and practice in other countries. Such law and practice may vary widely from country to country and in the extent to which it implements or is consistent with international law. For example, abolishing physical punishment of children is not specifically required by the Convention on the Rights of the Child although such an approach is entirely consistent with its principles and is promoted by the Committee on the Rights of the Child. Accordingly, while some states have taken this step, many other have not. Which practice is a Northern Ireland court required to follow under s 1(1) of the Bill of Rights given that there is no express duty under the Bill of Rights to prefer the approach most consistent with international law?

Section 2 Democratic Rights

The provision in the Commission’s original proposals lowering the voting age to 17 was not repeated in the revised proposals because the Commission considered that a change to the voting age would be better achieved through ordinary legislation. This change appears to be supported by submissions to that effect and as international law does not require any particular voting age this change would not appear to raise an issue of direct incompatibility with international children’s rights standards. At the same time, given that there was no strong opposition to establishing a voting age of 17 years in the original document and such a measure would be both consistent with international law as well as offer positive potential for promoting the rights of young people and their entitlement to equal protection of their rights with adults it might have been retained.

Section 4 The right to equality and non-discrimination

The Commission’s Update noted that its original proposals had been ‘widely criticised’ for failing to recommend a ‘balanced or coherent’ approach to provision for disadvantaged groups particularly regarding whether the Bill of Rights should make special provision for everyone (by mainstreaming) or include more specific protections for particular groups (p 36). The document goes on to explain the three possible approaches for the Bill of Rights. The first is mainstreaming which according to the Commission entails recognising that the word ‘everyone’ includes every member of every disadvantaged sector. While, quite incredibly, it suggests that this might be a step forward for some, such as people with disabilities who up to now ‘may have felt unrecognised as human beings’, it rightly recognises the drawbacks with this approach which fails to recognise the very specific rights which are important for some disadvantaged groups. The second approach is described as mainstreaming most rights but adding a few specific rights and is self-explanatory. It describes the third approach as including in the Bill ‘fairly lengthy sections’ covering the specific rights of children, older people, people with disabilities etc. It explains its current approach as coinciding with the second option, ‘while mainstreaming the bulk of rights it has retained a separate, though reduced, section for children’s rights and has included in other sections some specific rights for women, for people with disabilities and for Travellers’.(p 37)

In terms of the content of Section 4, subsection 2 refers to the requirement to take all necessary measures to promote the equal enjoyment, benefit and protection of all human rights and fundamental freedoms for women and girls. Other important provisions retained in the revised proposals include Subsection 4(1) which provides that ‘[e]veryone is equal before and under the law and has the right to equal protection and equal benefit of the law. Equality includes full and equal access to and enjoyment of all rights and freedoms set forth by law’. The inclusion of the limiting phrase ‘set forth by law’ may reduce the potential of this provision to promote equality by limiting its effect to those rights recognised by law. Nevertheless, it is an important provision which must be interpreted to confer a right on children and young people (included in ‘everyone’) to equal treatment and protection. This fact should be included in any explanatory commentary to the Bill.

Subsection 5 provides that
[a]ll public bodies are under a duty to have due regard to the need for laws, policies, programmes and activities aimed at achieving and sustaining full and effective equality in particular by reducing inequalities affecting groups disadvantaged on the grounds specified (in subsection 3 and including disability, marital or family status and age)) or on socio-economic grounds. Such, laws, policies, programmes and activities may include specific measures for individuals from such groups and shall not constitute discrimination.

This provision, the Commission itself admits, is a compromise and it is clearly a weakened version of the equivalent provision in its earlier proposals (paragraph 8 in Clause 4) which required the adoption of laws, policies etc aimed at achieving and sustaining full and effective equality. The previous option is to be strongly preferred and should be reinstated in order to ensure compatibility with international law including a specific reference to children to maintain consistency with Article 2 CRC.

Section 6 The Right to be protected against violence

This section replaces the provisions in Clause 6 of the earlier proposals which prohibit torture and inhuman and degrading treatment already provided for under Article 3 ECHR and paragraph 7 of Clause 4 which prohibited harassment and bullying as a form of discrimination. The revised proposals recognise a right to dignity and physical integrity for everyone and require the passing of laws to ensure the use or threatened use of violence including violence in the home, bullying in schools and intimidation or harassment in any context is prohibited and where appropriate punished. They take on added significance for children given that the equivalent section in the Children’s Clause has been removed in the revised proposals

It is positive that the provision requires both violence and threat of violence to be prohibited and that violence in the home and bullying in schools are specifically mentioned. However, this provision falls short of international children’s rights requirements in a number of ways.
• First, it is unclear why the Commission has favoured merely a requirement that a law be passed rather than requiring, like Article 19 CRC, that all necessary legislative, administrative, social and educational measures be adopted to prohibit or eliminate the ill-treatment described. Such an approach would give the provision far greater practical and interpretive effect.
• Second, the provision is limited to ‘violence’ and thus falls far short of the standards set out in Article 19 CRC, which prohibits ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse’. The limited nature of the Commission’s approach threatens to both limit the provision’s value (limiting it to violence) and undermines its relevance to children. This is of particular concern given that the child’s right to protection from ill-treatment, set out in the Commission’s earlier proposals, has been removed in the updated version (in Section 12).
• Third, while it requires the passing of a law to prohibit the treatment described, it requires that such ill-treatment be punished ‘where appropriate’ a limitation which appears to give considerable discretion to the prosecuting authorities. A clause along the lines of Article 19(2) CRC which specifies what protection means in terms of identifying, reporting, referring and investigating abuse would be preferable here as it would give greater practical effect to the right to protection of victims.

Section 7 The Right to Liberty

Article 5 ECHR, which was included originally, is not included in the revised proposals on the right to liberty contained in Section 7. While this is welcome given the vague and arbitrary grounds on which children may be detained (Article 5(1)(d) to detain children ‘for the purposes for educational supervision’ and ‘to bring them before the competent legal authority’), an opportunity was missed here to establish higher standards in the Bill of Rights regarding the detention of children.

Subsection 7 of this section is dedicated to the detention of children and reflects some of the standards set out in Article 37 of the Convention on the Rights of the Child. In particular, it recognises that every child deprived of liberty shall have the following minimum rights
(a) the right, if not convicted of an offence to be separated from children who are convicted;
(b) the right to maintain regular and direct contact with parents, siblings and other family members save in exceptional circumstances;
(c) the right to access the school curriculum and/or educational and vocational training necessary to prepare for his or her re-integration and constructive participation in society following release.

While it is positive that (b) and (c) recognise expressly the importance for children in detention of the right to have direct and regular contact with family members (Article 37(c) CRC) and the right to education, the provision falls short in the following fundamental respects:

• The principle of detention (including arrest, detention and imprisonment) as a measure of last resort and for the shortest appropriate period of time is absent having been removed from Clause 10 of the original proposals. This is a fundamental principle set out in the UN Rules for the Treatment of Juveniles Deprived of their Liberty and Article 37 (b) of the Convention on the Rights of the Child and its absence here seriously undermines the credibility and value of the entire section;
• The provision lacks a requirement or a commitment to develop alternatives to custody and institutional care for children. This provision is contained at international level in both the non-binding standards such as the Beijing Rules, and in Article 40 of the Convention on the Rights of the Child and was unjustifiably removed from Clause 10 of the original proposals without specific explanation;
• Section 7 lacks the requirement that ‘every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age’. This fundamental principle is contained in both Articles 37(c) and 40 of the Convention on the Rights of the Child. It was contained in Clause 10 of the earlier proposals but was removed in the revised edition and its absence undermines the value of the entire section;
• The provision also lacks the requirement, recognised in the CRC (Article 37(c) CRC) and the International Covenant on Civil and Political Rights (Article 10(2)(b) that children be separated from adults in detention. This provision was also removed from Clause 10 in the Commission’s revision of its proposals. The provision is clearly out of line with international law here;
• While the right to a solicitor is recognised, the child’s right to also have an appropriate adult present (contained in Clause 10 of the earlier proposals) has been removed. While it appears in section 8 on fair trial rights, it clearly does not have the same effect here.

Taken alone or combined, these gaps in the protection which Section 7 guarantees children deprived of their liberty are significant and mean that the protection afforded to children in detention in the Bill of Rights falls a long way short of the requirements of the Convention on the Rights of the Child and other international standards. Rather than ensuring that children detained in Northern Ireland enjoy higher standards than the minimum rights set out in the CRC, the failure to include several fundamental principles means that the Bill of Rights will offer children less protection than that required by the CRC. The Commission offers no explanation for its approach in this area or for its decision to prefer the detailed standards of the right to contact and to education while leaving out some of the most fundamental principles enshrined in international law on the treatment of children deprived of their liberty. (See further below)

Section 8 The Right to a Fair Trial

The revised proposals in this area include two provisions of relevance to children and young people.

Paragraph 4 requires the state to take appropriate measures to ascertain any particular vulnerability of individuals who have been arrested, remanded or charged with a criminal offence and shall take effective measures to protect the right to a fair trial of individuals with such vulnerability. This provision, the Commission explains, is not in the CRC but it considers it nonetheless to be important (p 50) and so it is intended, apparently, to apply to children. Apart from the fact that equivalent provisions do in fact appear in the Children’s Convention (see Article 37(c) for example) it is difficult to understand why having recognised that children are especially vulnerable during arrest, detention, charge and trial the Commission chose not to expressly recognise this vulnerability (And indeed that of other groups if appropriate) and offer protection in express form. In the light of concerns expressed above regarding the compatibility of Sections 7 with international standards, it is clear that a specific reference to the vulnerability of children in this area is necessary to comply with the Convention on the Rights of the Child in this area. Moreover, this provision would appear to have replaced the requirement (removed from Clause 10 of the earlier proposals) that the child enjoy as a minimum the right to have measures taken to ensure his/her participation in and understanding of the criminal proceedings. Yet, it could be said that in contrast to the general provision set out at paragraph 4 (above), the principle of the right to understand and participate effectively in criminal proceedings has a precise legal basis and is recognised by both Article 12 CRC and as well as the case law of the European Court of Human Rights (T v UK, V v UK, 1999).

The second provision, contained in paragraph 5 of Section 8, is that every child suspected or accused of having infringed the criminal law has the right to have an appropriate adult to represent his/her interests in addition to any legal representative. While this is a positive development, also linked indirectly to the child’s right to participate and understand, it is not clear why this should apply only to the legal proceedings and not also from the point of arrest or detention.

The following provisions, set out in international standards as well as Clause 10 of the Commission’s earlier proposals, have been removed in the revised draft:
• The requirement that states develop measures for dealing with children in conflict with the law without resorting to judicial proceedings and in a way which removes from the criminal process provided that their human rights and legal safeguards are fully respected: this fundamental requirement relating to how children are treated in the criminal justice system is contained in Article 40 CRC and the Beijing Rules;
• The requirement that children suspected, accused or convicted of infringing the criminal law be treated in a manner consistent with respect for his/her dignity and human rights and in accordance with his/her age and understanding: this right is set out in Article 40 (1) CRC and the Beijing Rules;
• The right to be tried in an appropriate setting and manner, having regard to the child’s age, maturity, needs, vulnerability and understanding. This is reflected in Article 40;
• The right to have his/her privacy respected throughout the proceedings (Article 40(b)(vii));
• The right to have parents present in any process to determine a criminal charge: this is set out in Article 40(b)(iii) of the Convention on the Rights of the Child.

Failure to include these rights which are fundamental to children in the criminal process reduces significantly the relevance and potential of the Bill of Rights to protect children in this category. The changes have clearly reduced the protection guaranteed to children to a level below the minimum set by the Convention on the Rights of the Child.

No explanation is provided for the Commission’s decision to remove these important and fundamental rights recognised widely in international law. While Section 12 of the updated document offers four explanations as to why clauses in the 2001 draft have not been repeated (see below) it is submitted that none of these apply here.


Section 12 The Rights of Children

This section provides a much edited version of the proposals for children’s rights. It is analysed for compatibility with international law below:


1(a) For the purposes of this Bill of Rights, a child means everyone below the age of 18 years.

This is repeated from the Commission’s original proposals and is positive insofar as it establishes the highest standard available under Article 1 CRC. However, limiting the relevance of the definition of a child to the Bill of Rights appears specifically to allow the introduction of legislation which would allow majority to be achieved earlier (and accordingly rights not recognised in the Bill of Rights could be taken away from those under 18) notwithstanding that legislation must be consistent with the Bill of Rights. This limitation has obviously greater significance the less protection the Bill of Rights provides for children and young people. A more positive provision would simply establish that a child means everyone below the age of 18 years (without the limiting introductory clause) . This provision could also be used to positively affirm the application of all rights to children in line with Article 2 of the Convention on the Rights of the Child (see also above)

(b) In all actions concerning children, whether undertaken by public or private institutions, individuals or bodies, courts of law, administrative or legislative authorities, the best interests of the child shall be the paramount consideration.

This is an improvement on the earlier draft (which in part limited the clause’s relevance to the interpretation of rights in the Bill of Rights) as it both applies Article 3 CRC and strengthens it from the best interests being ‘a primary consideration’ to ‘the paramount consideration’. This is an important provision which is to be welcomed.

(c) Public bodies shall carry out their functions in relation to children in accordance with the UN Convention on the Rights of the Child.

The second part of this provision (that requires public bodies to take all reasonable steps to ensure for all children the following rights) has been deleted. To an extent, this is to be welcomed as it was troublesome in a number of respects (see above). However, the result is that the current clause does not go far enough to ensure the effective implementation of children’s rights. In particular, the provision could have placed an obligation on public bodies (although public authorities is to be preferred in line with s 6 Human Rights Act, 1998) ‘to take all necessary measures to implement the rights in the Convention and/or the Bill of Rights’ to bring it into line with Article 4 CRC. This would also logically supplement the provision in Section 1 of the Commission’s latest proposals which requires a court, tribunal or body to read legislation in a way that is compatible with the Bill of Rights (s 1(3)) as both provisions are part of the HRA approach to incorporation of the ECHR.

(2) Every child has the right to participate effectively, either directly or indirectly through an independent representative, in all proceedings affecting him or her, whether administrative or judicial, in public or private law. Every child has the right of access to the law and to legal representation.

The first sentence of this provision recognises the importance of the child’s right to direct and indirect representation and repeats, unchanged, the provision set out in paragraph (b) in Section 10 of the Commission’s preliminary proposals. In this regard, it reflects the second paragraph of Article 12 CRC, which provides that the child shall have the opportunity to be heard in all proceedings, and in this regard, can in fact be said to have strengthened that provision (insofar as ‘participation’ requires greater involvement than ‘being heard’).

The second sentence is an addition to the original proposals and while the recognition that children have the right of access to the law and the right to legal representation is welcome, they appear to simply restate what is already established in law. Without any explanation or comment from the Commission, it is difficult to understand the necessity and relevance of this provision, particularly given that much more crucial provisions in this area have been removed. In particular, the Commission has removed two fundamental provisions including the general principle in Article 12 of the Convention on the Rights of the Child which guarantees the child’s right to express his/her views and have them given due weight in accordance with the child’s age and maturity. Removal of this provision, elevated to the status of a guiding principle by the Committee on the Rights of the Child, is probably the most serious flaw in the Commission’s latest proposals given the extent to which the child’s right to be heard represents respect for children’s views, their evolving capacity and their right to influence decision-making in all areas of their lives. Its removal is absolutely unsustainable in this context and undermines the relevance of the entire Bill of Rights to children and young people and its potential to protect their rights. As well as ensuring that the Bill of Rights will fall considerably short of international law (including the EU Charter for Fundamental Rights and Freedoms), failing to provide for the child’s right to be heard also flies in the face of the Commission’s own commitment to listen to children and what they had to say. For example, the ‘What you said’ publication reflects the view of children and young people that children’s right to have their say and take part in decisions was ‘one right that you linked to almost every other right you discussed’.

The latest proposals have also seen the removal of the third paragraph proposed in Section 10(b), ie the right to participate and play a constructive role in society and the requirement to promote and encourage all those working with and for children to co-operate and form partnerships with children. While inclusion of this right does not undermine the Bill of Rights in the same way as removing the Article 12 principle, it is nonetheless an innovative provision which gives important, practical effect to the child’s right to be heard. Including the duty to consult (even in the soft form of ‘promoting’ and ‘encouraging’ such action) is very much line with the existing requirements under s 75 Northern Ireland Act, 1998 as well as the spirit of Article 12 of the Convention on the Rights of the Child. It is also something which reflects the value to be attributed to the views of children and young people – strong among the voluntary sector in Northern Ireland – and which thus reflects the particular circumstances of the region.

(3) (a) The State shall provide adequate support and assistance to parents and other primary carers to enable every chid in so far as is possible to grow up in a safe family environment;

The only change to this provision from the earlier draft is the removal of the word ‘stable’ from the description of the family environment. No explanation is offered as to why this has been excluded, and it is unclear not least given that ‘safety’ (which was not removed) cannot be guaranteed but is nonetheless widely accepted to be in the child’s interests and is thus an important aspiration in children’s family lives. Generally, however, the provision clearly reflects the Preamble of the CRC which recognizes that ‘the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding’ and also asserts that 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, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community’. The assertion of the right in (3)(a) above in the form of a state duty to provide support and assistance is consistent with the formulation of the equivalent clause in Article 18 CRC although it is arguable that a positive formulation (which recognises the right to support and assistance) would provide stronger protection.

(b) Every child who is denied a safe family environment is entitled to special protection and support from the State in the best interests of the child within a reasonable time;

This provision is repeated from the earlier proposals with the removal of the words ‘stable and loving’ before family environment. This does not affect its compatibility with the CRC standard (Article 20, the equivalent provision, refers only to ‘family environment’) although it arguably gives it more of a practical, than an aspirational effect. (it might also be said that the earlier proposals would make it easier for moral decisions or judgments to be made regarding the necessity of separation from families that were not deemed ‘loving’ or ‘stable’.) As with the earlier proposal, the inclusion of the best interests principle and the reasonable time requirement are positive and welcome additions which go beyond the protection provided by Article 20 CRC.

(c) Every child who is separated from one ore more parents or otherwise deprived of his or her family environment has the right to maintain personal relations and direct or indirect contact with any parent or family member except where this is contrary to his or her best interests.

While this provision mirrors Article 9(3) CRC, the significant clause which requires such contact to take place ‘on a regular basis’ has been removed. No explanation is offered for this decision (the reference to regularity is not removed from the equivalent provision in Section 7 above) notwithstanding that the consequence is to bring the protection offered to children separated from their parents below the standard set out in the Convention on the Rights of the Child. The right to direct or indirect contact is undermined where that right cannot be exercised on a regular basis. The regularity and frequency of children’s contact with their parents and siblings is crucial where they are separated. This is reflected both in Article 9 CRC and in Article 4 of the Council of Europe’s Convention concerning Contact with Children, adopted in 2003.

(d) Children leaving care shall be prepared for and supported in the transition from care to independent living. The State’s obligation to protect and support shall end only when it is no longer required.

This provision is reiterated from the earlier proposals although moved to an independent paragraph. It extends the right to protection and support beyond that envisaged in the Convention on the Rights of the Child and fills an important gap in the protection afforded to children in this area.

4. The age at which a person can be held criminally responsible shall not be less than 12 years.

This provision is repeated from the earlier proposals and as international law merely requires an age of criminal responsibility to be set (and does not propose any particular age), it can be considered to be compliant. (Article 40(3)(a) CRC) Given the uncertainty regarding the age to be chosen, the proposed requirement that the age be kept under review was an original and positive provision. However, this has been removed in the revised proposals without explanation. Instead, the Commission has rather confusingly asserted that despite removing the proposed duty to review the age, ‘they (the Commissioners) would like the age to be kept under review and to be raised if the reviewing body recommends’. It is thus recommended for the sake of clarity and consistency that the original clause requiring review the age be kept under review be reinstated.

5. Every child living with a disability has the right to the greatest extent possible to enjoy an independent and fulfilling life in conditions which ensure dignity, promote self-reliance and facilitate his or her active participation in the community. He or she has the right to special care and assistance, to assessment and appropriate services and to effective education, which allows the child, to the greatest extent possible, to maximise his or her potential for personal development, independence and social inclusion.

This provision is identical to that included in the original proposals. It differs from the working group proposals in relation to the inclusion in two places of the condition ‘to the greatest extent possible’ the purpose for which is not clear. No such limitation is contained in Article 23 of the Convention on the Rights of the Child and it should thus be removed from both sentences to ensure compatibility with the admittedly low standards set out in that provision. Compliance with the CRC also recommends the specific extension of Article 12 (right to be heard and to participate) and Article 2 (non-discrimination) principles to children with disabilities and consideration should be given to including them expressly in this provision if they are not to be contained in the interpretive clause as recommended above.

6. The state shall take appropriate measures to ensure that the rights of children are widely known.

This provision reflects the first sentence of the equivalent provision in the earlier draft with some amendments. First, the earlier provision had required that ‘the State undertakes to make the rights of children widely known’ in line with the wording in Article 42 CRC. The wording chosen in the latest draft appears stronger although replacement of the word ‘appropriate’ with ‘all necessary’ measures would strengthen the provision in line with the Convention. Second, the requirement to make the rights of children ‘accessible to all’ has been removed despite submissions made to the Commission supporting the inclusion of this clause. Thirdly, the earlier provision had included a duty to include human rights on the school curriculum (this is now included in Section 13 on Education Rights) and a duty to include children’s rights on the training programmes of all those working for, and in connection with or on behalf of children. This provision is consistent with the requirements of the Convention, as set out by the Committee on the Rights of the Child in its Concluding Observations and General Comment (No 5) on Implementation. It is thus submitted, that the removal of this sentence brings the standard of protection offered here below that required by international law and it should thus be reinstated.

Other provisions excluded from Commission’s revised proposals and not discussed above are:
• The right to play: the removal of this provision, which is utterly unique to children (protected by Article 30 CRC) and central to their childhood brings the protection of the Bill of Rights below that required by the Convention;

• The right to health care and standard of living: Clearly crucial to children’s life, survival and development (Article 6 CRC), provisions in the earlier draft recognizing the child’s right to the highest sustainable standard of health, the duty to take appropriate measures to address health problems specific to children and the right to an adequate standard of living have all been removed from the children’s Clause. Section 15 of the revised draft (on social and economic rights) contains general provisions on the right to health care and to an adequate standard of living. However, the only reference to children here is the requirement that the state take appropriate measures to address health problems specific to children and to promote the health and health care of children. This falls short of the extensive provision made for the children’s rights to health care set out in Article 24 CRC as well as the right to an adequate standard of living provided for in Article 27.

Moreover, the general provision (Section 15 para 3(a)) provides for a standard of living ‘sufficient’ for that person. This compares unfavourably with Article 27 CRC which recognises in more detail ‘the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development’. In contrast to Article 27(2) CRC, which makes specific provision for parents to receive help and support in providing for their children, Section 15(3)(b) simply provides that every one has the right to social care and support in accordance with their needs. This failure to make specific provision for the material support and assistance which families need means that the latest proposals fall short of Articles 18, 24 and 27 (for example) .

• Protection from economic exploitation: Section (j) in the earlier provisions on children’s economic rights has been removed without any specific explanation. While Section 15(5) in the revised proposals deals with the right to just and favourable conditions of work, nowhere is the child’s right to be protected from exploitation and dangerous conditions, and equal protection of the law in this area set out. This brings the protection afforded by the Bill of Rights below the standard required by Article 32 CRC, Article 32 of the EU Charter of Fundamental Rights and Freedoms and Article 7 of the Council of Europe’s European Social Charter.


CONCLUSIONS

The latest proposals from the Commission on the proposed content of a Bill of Rights for Northern Ireland are significant for all the wrong reasons. In particular, they fail to recognise well-established, fundamental principles relating to the treatment of children in conflict with the law, the document in its current form, reflects an outdated view of the treatment of children which is paternalistic and in some areas fails to recognise them as individual beings with independent and evolving capacity. In addition to failing to make express provision for the general principles (article 2, 6, 12) of the Convention on the Rights of the Child (itself a set of minimum standards) the Bill of Rights has gaps in its provision for children’s rights that are unexplained and illogical. These gaps cannot be explained either by the Commission’s own comment that rights not repeated from the 2001 draft did not add significantly to the protection afforded by the UNCRC, were too specific, were too vague and unenforceable, and were reflected elsewhere. The Commission should be challenged to explain precisely which provisions were removed on these bases given that many of the rights that survived (in this and other sections) could equally be said to fall foul of that rationale. The suggestion made also (on p 62) that the CRC is being given effect by virtue of proposed section 12(1)(c) is also to be challenged with reference to material cited above. Overall, in contrast to the earlier draft, the revised proposals fail to provide even the minimum protection for children’s rights in some areas including the right to special protection, the right to be heard and the right to play, and make only basic and unimaginative provision in others.

The Commission has asserted that in editing the children’s rights section it was reacting to the overpowering criticism made that the original children’s rights section was simply too big (relative to others). This must be challenged, however, with reference to the Summary of Submissions which shows little if any evidence of this criticism, as well as the Commission’s own view that children represent a significantly disadvantaged group, one third of Northern Ireland’s population, who are worthy of special protection. The Commission should also be reminded that the Convention on the Rights of the Child is the longest human rights treaty on the UN’s books and that the length is due to necessity rather than a mere indulgence of a particularly active children’s rights sector. It should also note from the Convention’s experience the added value of setting out the rights of children and young people in a self-contained and dedicated document in raising the profile of children’s rights and making them accessible to all. Relevant too is the expectation raised among young people by the Commission’s communications with this group, which stressed the importance of their views, the commitment to take them into account, and the need to take the opportunity to strengthen the protection offered by the Convention on the Rights of the Child.