Closing the gap –Child Rights Standards and Local Realities




Outline

This paper aims to provide an overview of the key instruments and institutions that exist, both domestically and internationally, for the promotion and protection of children’s rights in Northern Ireland. While this will also require an examination of important overarching policy developments in relation to children and young people’s lives, the main focus will be on those domestic and international legislative mechanisms and institutions that exist to promote and protect children’s rights.

The paper commences by setting the reality of children and young people’s lives in Northern Ireland in its broader political and social context, highlighting the impact of recent political developments for children’s rights protections.

It examines the UK government’s international human rights commitments for the protection of children’s rights in Northern Ireland and in particular government’s obligations under the United Nations Convention on the Rights of the Child, which provides a detailed framework of principles and standards for the protection of the rights of all children in Northern Ireland.

The paper discusses the rights children enjoy under domestic legislation through the European Convention on Human Rights as incorporated by the Human Rights Act 1998 and how the UN Convention on the Rights of the Child is increasingly influencing the interpretation of children’s rights under the European Convention on Human Rights. Proposals to significantly enhance current children’s rights protections under the European Convention on Children’s Rights, through the Bill of Rights for Northern Ireland, are assessed.

In relation to children’s rights two of the most significant ‘home grown’ legislative and policy developments have been Section 75 of the Northern Ireland Act 1998 and the development of the Children’s Strategy respectively. The question is asked as to whether all government departments have discharged their Section 75 duties in relation to children and young people in the spirit as well as the letter of the law. With the development of an over-arching ten year Children’s Strategy by the Office of the First and Deputy First Minister it is hoped that there will finally be a coherent accountable rights based policy framework which will bring together the many, and often conflicting policies that are intended to give effect to government’s legislative commitments to children and young people. This paper briefly examines what is required of the Strategy in order to deliver meaningful changes in all children and young people’s lives.

In addition to government’s legislative duties to protect children’s rights a number of
independent human rights and equality institutions have been established in Northern Ireland that have the potential to positively impact on children’s rights protections. Chief amongst these is the Office of Commissioner for Children and Young People. The potential of this institution to protect children and young people’s rights will be briefly examined.

The paper concludes by summarizing the current situation in relation to children’s rights protections in Northern Ireland, the further potential provided by legislation and policy for advancing children’s rights protection in Northern Ireland while highlighting the extensive gap that needs to be closed before all children enjoy the full protection of their rights.


Context of Children and Young People’s Lives in Northern Ireland

It is contradictory but true that children and young people globally experience the world both very differently while also having many shared experiences. The life of a child growing up in a slum in Rio de Janeiro, where his/her family survives on a dollar a day is manifestly different to that of a child living in a middle income suburbia in any city or town in Western Europe. Closer to home the life of a Traveller child, living in a temporary halting site without basic facilities bears little relationship to the situation of the child growing up in the affluent and leafy suburbs of South Belfast. There is likely to be little similarity between a young boy studying 10 GCSEs in a grammar school while another young boy receives 8 hours of tuition a week within a juvenile justice centre. One can easily think of many such examples where children’s lives are palpably different.

Yet children everywhere have the same experience of relative powerlessness within an adult dominated world, of being viewed in the first instance as a tabla rasa waiting to be imprinted upon and later as ‘adults in waiting’, of being constructed as passive recipients whose needs must be met by adults. Children and young people are rarely considered as rights holders with entitlements to the full range of human rights that must be respected, protected and fulfilled by the state.

Children’s lives are unquestionably shaped both by their status as children, their identity, personality and family circumstances but also to a large degree by their social, economic, political, cultural and environmental contexts. These contexts, while often having many similarities across societies are nonetheless particular to each society. In Northern Ireland the particular circumstances reflect the fact that this is a society, almost uniquely in Western Europe, emerging out of decades of conflict, under reconstruction. Another particular circumstance is the high proportion of children and young people as a percentage of the population – at 26.6% this represents a higher proportion that anywhere else in the UK. It is also generally recognised that, in large measure due to the conflict, child focused legislative and social policy developments have lagged behind the rest of the UK, leaving important issues affecting children and young people unaddressed. The following statistics provide some indication of how the various political, social, economic and cultural influences at play in Northern Ireland have shaped the lives of its children and young people:

• 557 children and young people under 20 years of age have been killed in the conflict
• 7 children under 18 years of age have been killed by plastic bullets
• 37.4% of children in Northern Ireland under the age of 15 are living in poverty
• 36% of all households have dependent children and of these, 22% are headed by lone parents
• Infant mortality rates for Traveller children are three times higher than for the general population
• 5,779 pupils were suspended and 70 pupils expelled from school in the academic year 2002/2003
• 67% of our children are effectively denied access to an ‘academic’ education by virtue of a selection process at the age of 11 years.
• 2422 children were looked after by their local HSS Trust in 1990/2000
• 1414 children were on the child protection register 1999/2000
• There are only 14 hospital beds for children with mental health problems

Whilst undoubtedly some of these statistics, which paint a depressing picture of the state of children’s rights in Northern Ireland, would not be dissimilar for other jurisdictions, many of them are uniquely determined by the nature of this society and children and young people’s position in it.

On a more positive note, the strong equality and human rights commitments embodied in the ‘Rights, Safeguards and Equality of Opportunity’ section of the Belfast (Good Friday) Agreement was a recognition by all political parties and both the British and Irish governments of the need to ensure human rights protections as well as address inequalities within society, including for children. The imposition of the Section 75 equality duty on public authorities, as well as the establishment of the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland all held positive implications for the protection of children and young people’s rights.

With the subsequent introduction of devolution and following decades of official invisibility within the political, legislative and policy arenas, it seemed as if the pleas of the Simpson’s cartoon character, the Reverend Lovejoy’s wife “won’t somebody please think of the children!” had finally been heard in Northern Ireland. The establishment of the Northern Ireland Assembly and Executive brought some significant advances in the protection of children’s rights. Key amongst these was the setting up of the Children and Young People’s Unit in the Office of the First and Deputy First Minister, the establishment of the Office of Commissioner for Children and Young People and the current development of an overarching ten year children’s strategy. These developments also demonstrated a commitment by all of the political parties to work together in a multi-party system of government in the best interests of children and young people in Northern Ireland.

Alongside these positive outputs, the rolling nature of devolution instituted also brought a considerable level of complexity and often confusion with regard to where responsibility lay for a number of significant issues affecting children and young people. This was due to the fact that under the Northern Ireland Act 1998 responsibility in respect of children’s lives rests with both devolved and direct rule ministers. Children’s issues straddle all three levels of devolved, reserved and excepted powers; areas such as education being devolved, youth justice being retained as a reserved matter and immigration issues an excepted matter. The result at times has been that children and young people and their advocates have had to find their way through a legislative, bureaucratic and administrative labyrinth. The most recent suspension of devolved government and the return to direct rule by Westminster in October 2003 has meant that parliamentary bills for Northern Ireland are once again being passed as Orders in Council in Westminster with no real scope for political scrutiny by locally elected politicians. It is a fair comment that the uncertainty created by the on-off nature of devolution has not only slowed down the good progress being made on children’s rights issues in many areas but is seriously threatening the achievements of the devolved institutions and the peace process itself in delivering on children’s rights.


UN Convention on the Rights of the Child

Aside from an increased localised political commitment to children’s rights protection as described above, the main driving force behind the UK government and the devolved administration’s growing commitment to children’s rights lies within the United Nations, and with one human rights treaty in particular, the United Nations Convention on the Rights of the Child (hereafter the CRC), described by Van Buren as ‘both a peaceful and powerful evolutionary instrument of change”. Since its introduction it has acted as a catalyst for the advancement of children’s rights worldwide, elevating children’s rights issues to an increasingly centralized position within government agendas. The CRC is unique among human rights instruments in that it brings together economic, social and cultural rights with civil and political rights and as such is the most comprehensive of all human rights treaties. It is also the most highly ratified human rights treaty, having been ratified by all but two states world wide. It applies to all children, defined in the CRC as “every human being below the age of eighteen years unless, under the law applicable to the child, the majority is attained earlier”.

The UK government ratified the CRC in December 1989. In doing so the government committed itself to a set of non-negotiable and internationally legally binding minimum standards and obligations in respect of all aspects of children’s lives, from respecting and promoting fundamental principles such as the best interests of the child and the child’s right to be heard, to rights in areas such as standard of living, education, care and protection, health, youth justice and play.

According to Kilkelly the CRC broke fresh ground by “providing for child-specific versions of existing rights like the freedom of expression, right to a fair trial, as well as establishing new standards by codifying for the first time the right of the child to be heard, both in general and more specifically, in all proceedings that affect the child”. It also made a commitment to recognise and respond to the specific needs of particular groups of children and young people who may suffer discrimination, such as minority ethnic groups including Travellers, children and young people with disabilities, asylum seeking children, children in care, children in the youth justice system and others.

The general principles of non-discrimination in Article 2 and the child’s best interests in Article 3, taken together with the child’s right to participate in Article 12 form the cornerstones of the CRC while its provisions are grouped under the following clusters: general measures of implementation, general principles, civil rights and freedoms, family environment and alternative care, basic health and welfare, education, leisure and cultural activities and special measures of protection.

The CRC does not provide for an international system of complaints by individual children or groups of children against government, rather its implementation is monitored by a panel of international experts, the UN Committee on the Rights of the Child, to whom the government has to report on a five yearly basis. Neither are there international legal sanctions for government failure to comply with the CRC; as Kilkelly notes “the approach of the UN Convention on the Rights of the Child Committee to the promotion and protection of children’s rights is advisory and non-adversarial in nature and its success relies on diplomacy rather than legal sanction”.

Despite a requirement by the UN Committee on the Rights of the Child that government “takes appropriate measures, as required by Article 4, to ensure that the provisions of the Convention are given legal effect within their domestic legal systems” the UK government has given no indication that it is considering full legal incorporation of the CRC. As a result children and young people in Northern Ireland whose rights have been violated are denied the right to a domestic remedy under the CRC.

Short of incorporation the CRC should be fully utilised as a child rights proofing mechanism by which to evaluate the mainstreaming of children’s rights into all legislation and policy. The influential UK Parliamentary Joint Committee on Human Rights in its recent report on the CRC described the obligations it places on government thus “it should function as a set of child-centred considerations to be used by all departments of government when evaluating legislation and policy.”

In Northern Ireland to date there has been no such systematic evaluation of domestic legislation, policy and practice for compatibility with the CRC. Indeed there are clear examples of where government has knowingly introduced legislation, or failed to introduce legislation, that is CRC compliant. Despite a recommendation from the Criminal Justice Review on the inclusion of the best interest principle (Article 3 UN CRC) as a primary consideration in the Justice (NI) Act 2002, the government did not take the opportunity when drafting this Act to make it CRC compliant. Government’s continuing failure to introduce legislation to outlaw the use of physical punishment within the family flies in the face of the child’s right to protection from all forms of abuse under Article 19 of the CRC. Given such practices the need to include a robust child rights proofing mechanism in the Office of the First and Deputy First Minister’s (OFMDFM) ten year Children’s Strategy would appear obvious.

In Northern Ireland the Office of the Commissioner for Children and Young People (NICCY) is currently undertaking a major audit of government compliance with the CRC. It is expected that this audit, due to be completed in September 2004, will highlight the dissonance between the CRC standards and domestic legislation and policy, thereby making the case to government for the introduction of child rights proofing of all legislation and policy.

In effect then the CRC’s principal value seems to be as an objective benchmark against which government’s legislative and policy record on the protection and promotion of children’s rights can be evaluated. In saying that, the merits of the monitoring and reporting process should not be underestimated. The reporting and examination process under the CRC is unique across the UN human rights treaty bodies in that it accords a formal role to NGOs in the process. Thus for the 2002 examination the Children’s Law Centre and Save the Children, the two lead children’s rights NGOs in Northern Ireland, submitted an alternative NGO report to the UN Committee, endorsed by over 60 organisations. They also attended the examination and facilitated a number of young people to participate in the process. The UN Committee readily acknowledges that such NGO participation is invaluable in helping them to form a more holistic and accurate assessment of the state of children’s rights in a particular jurisdiction.

The most recent examination by the UN Committee on the Rights of the Child of the UK government’s child rights record delivered a highly critical report card for the government. As stated by Sheri Chamberlain, Director Save the Children in Northern Ireland, the Committee’s concluding observations, issued in October 2002 “illustrate clearly that the UK government is in breach of its international obligations to ensure that children’s and young people’s rights are upheld. There are many examples of rights being violated on a daily basis; children in the youth justice system and Traveller children are just some of the groups who are at particular risk.”

The UN Committee’s recommendations in the main dealt with issues that cut across the four jurisdictions with only a small number being limited to Northern Ireland alone. The latter included emergency legislation and other legislation in relation to the administration of juvenile justice, the continued use of plastic baton rounds, the use of physical punishment in private schools, integrated education and the teaching of the Irish language in schools. Other relevant recommendations included those addressing issues of child poverty, health, education, violence, abuse and neglect, minimum wage, Travellers and refugee and asylum seeking children. Overall the UN Committee’s report provides a quite detailed and critical assessment of the key children’s rights issues across the four jurisdictions while setting out a comprehensive plan of action to address them.


European Convention on Human Rights

Given that the CRC is an international human rights instrument more suited to achieving improvements in the children’s rights situation in the long term, one might ask what is available by way of domestic remedies to challenge violations of children’s rights in the short term. Since the incorporation of the European Convention on Human Rights (ECHR) into our domestic legislation in October 2000 children now have a remedy in our domestic courts for breaches of rights protected by the ECHR.

The Human Rights Act 1998 incorporated the ECHR into our domestic legislation in October 2000 giving a remedy in our domestic courts for breaches of the ECHR. Children enjoy the rights protected under the ECHR, which now, along with case law, must be taken account of in all courts including Youth and Family Proceeding Courts. Article 1 of the ECHR makes it clear that its rights are to be guaranteed to ‘everyone’ and thus children as well as adults are entitled to have their convention rights respected. This is reinforced by a growing body of case law in the European Court of Human Rights which has concerned the rights of children and young people, particularly under articles 3, 6, 8 and Protocol 1, article 2. The equal application of the Convention regardless of age is confirmed by Article 14 which prohibits discrimination in the enjoyment of Convention rights on unlimited grounds, including the unenumerated ground of age.

While any explicit references to children’s rights in the text of the ECHR are admittedly thin on the ground this doesn’t lessen its relevance to children and its potential use for protecting children’s rights. Public authorities when acting in respect of children must comply with the provisions of the ECHR as incorporated and have a positive duty to protect the rights enshrined in the ECHR. Under the ECHR children have the right to have their life protected by law, they have the right not to be subjected to ill-treatment, they have the right to liberty and fair trial, they have the right to have their private and family life respected, the right to associate, express their views and practice their religion and they have the right to education. Kilkelly has observed that “the broad nature of the Convention provisions facilitates their adaptation in a way which takes account of the particular needs and rights of the child.”

There have also been increasing references to the CRC in both European and domestic court decisions concerning children. Describing it as the ‘best of both worlds’ Kilkelly demonstrates how, given that ECHR guidance on matters of children’s rights is frequently absent, the detailed and specific provision of the CRC have been used to great effect, “both as signposts in the interpretive process and to encourage dynamic interpretation generally” .

This trend can be observed not only in the European Courts but also in courts in Northern Ireland. For example in the case of TB v A Community & Hospital Trust Mr. Justice Gillen, in the context of an application for parental responsibility stated: “Is it incumbent upon the courts increasingly to ascertain and duly take account of children’s own views and wishes consistent with Article 12 UNCRC, (emphasis added) the European Convention on the Exercise of Children’s Rights 1996 and Article 3 (3) Children (NI) Order 1995.”

In line with Article 19 CRC, the European Court of Human Rights has used Article 3 of the ECHR, which prohibits inhuman or degrading treatment or punishment, to vindicate the child’s right to protection from abuse. In A v UK, a case brought by a young boy concerning his abusive step-father, the court, in referring to the CRC provisions, held that “children and other vulnerable individuals, in particular, are entitled to state protection, in the form of effective deterrence, against such serious breaches of personal integrity”. It then went on to find that the failure of the legal system, which permitted the defence of reasonable chastisement in cases involving severely poor protection of children from such abuse, violated Article 3.

Other children’s rights issues that have been considered by the courts under the ECHR have included:

• The rights of looked after children
• The rights of children to have contact with their family
• Children who come in contact with the criminal justice system
• Children’s entitlement to education
• Children’s right not to be discriminated against
• The child’s right to have a fair trial
• The child’s right to physical integrity
• The child’s right to mental health
• The right of children to be protected from harm
• Conditions of detention

Kilkelly has identified areas of potential incompatibility with the Convention that remain outstanding in Northern Ireland to include:

• The education system, notably the lack of procedural rights for those children excluded from school and the inability of some groups, such as Traveller children or children with special needs, to access existing educational facilities on a par with their peers

• The care system – of particular concern here is the inability to challenge a care order and the use of secure accommodation orders in an inappropriate way

• The family courts system, where children are not always afforded separate independent representation as a matter of right

• The youth justice system, especially the extent to which young people in detention enjoy the right to education and the right to have their private and family life and correspondence respected and the failure to deal with all children’s cases in the youth court system.

It is to be hoped that a growing awareness on the part of public authorities of their duties to children and young people under the ECHR, combined with lawyers using both the ECHR, as well as the CRC for interpretive purposes, will lead to increased protection of children’s rights in this jurisdiction.


The Bill of Rights for Northern Ireland

Under the Belfast (Good Friday) Agreement 1998 the Northern Ireland Human Rights Commission (NIHRC) was tasked with consulting on the scope for a Bill of Rights for Northern Ireland. Its advice to the Secretary of State must include rights supplementary to the ECHR, reflect the particular circumstances of Northern Ireland and draw as appropriate on international instruments and experience.

It seems clear however that in real terms the absolute ‘best of all worlds’ for children and the protection of their rights would require the incorporation of the CRC. Such a proposal is contained in NIHRC’s consultation document on the Bill of Rights for Northern Ireland.

Following on from its initial consultation document issued in September 2001 the NIHRC released an update report in April 2004. The inclusion of a separate chapter on children’s rights in both documents is a clear recognition by the NIHRC of the particular vulnerability of children and of the gap that exists in current children’s rights protections. Children’s rights have also been included where relevant in other chapters such as education, the right to family life, right to a fair trial and right to health. However, ‘the devil is in the detail’ and concerns have been expressed as to whether the NIHRC’s dual approach of separate provision and mainstreaming of children’s rights throughout the document, with the greater emphasis now being on the latter approach, will adequately protect children’s rights. Other sections of the Bill of Rights, while perhaps not explicitly focusing on children and young people will also have significant implications for their rights protections – these include chapters on community and minority rights, equality and non-discrimination, social and economic rights, victims and language rights.

Initial assessment of the latest proposals would indicate that the NIHRC’s attempts to mainstream children’s rights throughout the document have instead rendered many of the required provisions invisible or they have been removed entirely. The text also suffers from a lack of clarity and precision; for example, whilst it argues for incorporation of the CRC, it is not clear from the text of the draft clause proposed whether this would be its effect and the justiciability of such incorporation. The NIHRC’s proposals are being carefully scrutinized by the children’s rights organisations to determine whether they even meet minimum international standards and how they will require strengthening to guarantee protection for children’s rights.

There is a huge groundswell of support for the inclusion of the maximum children’s rights protection in the Bill of Rights. It offers a unique and historic opportunity to completely transform the children’s rights landscape in Northern Ireland, thus ensuring a different future for generations of children to come. It remains to be seen whether the NIHRC take full cognizance of the many submissions made to it in this respect and whether their final advices contain the necessary provisions.


Children’s Strategy

Undoubtedly children and young people need their rights enshrined in law and must have recourse to legal remedies where these rights have been breached. Yet the problems faced by children and young people in Northern Ireland cannot be solved solely by individuals litigating against the state. A pro-active approach by all government departments and agencies to discharge their duties and to engage in the promotion and protection of children’s rights, coupled with a vibrant child rights culture throughout society should ensure that children and young people are rarely forced to resort to that last option of legal action.

Central to such a pro-active approach by government is a comprehensive over-arching accountable and monitored Strategy, rooted in the CRC, which all government departments and agencies have contributed to and work to implement. In recommending that governments develop such national action plans the UN Committee on the Rights of the Child noted that the Strategy “must not be simply a list of good intention; 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 Children and Young People’s Unit in the Office of the First and Deputy First Minister are currently in the process of drafting a 10 year cross departmental strategy for children and young people. The Strategy will become the all encompassing policy framework for the eleven Northern Ireland government departments, the NIO and the Northern Ireland Court Service and all those with a statutory duty in respect of children in all matters affecting children and young people. All of these bodies in turn will be expected to distill the Strategy into individual departmental/agency action plans.

If the Strategy is to deliver significant improvements in the lives of all children and young people in Northern Ireland there are a number of key requirements it must fulfill. It must: be explicitly based on the UN CRC and respond to the UN Committee’s concluding observations, contain high level strategic objectives and outcomes, targeted and time framed implementation measures, effective monitoring and review mechanisms, adequate resourcing and unambiguous lines of departmental and political accountability. Until the Strategy is finalised it will not be possible to determine whether it meets these requirements.


Section 75

Issues of equality were at the core of the conflict in Northern Ireland and the inclusion of substantial equality as well as human rights provisions in the Belfast (Good Friday) Agreement was recognition of the need to place the equality and human rights concerns of all communities at the heart of the conflict resolution process.

One of the key equality mechanisms arising from the Agreement involved placing an equality of opportunity duty on all public authorities. Section 75 of the Northern Ireland Act 1998 (the Act) requires public authorities carrying out functions that relate to Northern Ireland to consider the implications, from an equality of opportunity perspective, of their policies on a range of groupings including age. It also imposes a further ‘good relations’ duty on public authorities in relation to a smaller number of groups. Each designated public authority is required to produce an equality scheme stating how they propose to fulfill these duties and these schemes must be submitted to the Equality Commission for approval.

Section 75 is essentially intended to place equality issues at the heart of a whole range of public policy developments. According to Professor Chris McCrudden, somebody who was intimately involved in the development of Section 75, at its core are three key elements :
• Recognition of inequality in our society that relates to particular groups
• Participation by those affected in trying to solve the problem
• Redistribution of resources with targets and timetables for reducing differentials

Section 75 contains the potential to mainstream the participation of children and young people, as well as of all other equality groups, in the policy making process. McCrudden has commented that whether or not Section 75 succeeds in mainstreaming equality in the governance of Northern Ireland “will depend on the willingness of all those involved, politicians, public servants and civil society, to operate these provisions with skills, imagination, determination and in good faith. Only in doing so will the letter and spirit of the Good Friday Agreement be fully implemented”.

While there has been no comprehensive assessment undertaken of the overall impact of Section 75 on the equality situation of children and young people, we can turn to both the progress reports of the Equality Commission, the body charged with monitoring its implementation, as well as the experience of children and young people’s organisations in working with Section 75, in order to ascertain how it has worked. It becomes quickly obvious that the ‘good faith’ ingredient of McCrudden’s recipe for its success is the most critical factor. Progress reports from the Equality Commission detail a number of examples of good practice by various government departments and public bodies. For example, the Statutory Duty Unit of OFMDFM ensured that staff involved in Equality Impact Assessments of a range of child related policies undertook EQIA training. Other positive examples of good practice in relation to Section 75 include the consultations carried out by the Office of Law Reform on physical punishment and the Office of the First and Deputy First Minister on the Office of Commissioner for Children and Young People. Clearly some departments and bodies are taking this element of their equality duty seriously. Disappointingly however many of these examples of good practice are limited to the lower and less strategic level of policy making.

In stark contrast to these models of good practice, the Northern Ireland Office’s consultation on draft legislation for the introduction of Anti-Social Behavior Orders (ASBOs) to Northern Ireland earlier this year underscores the complete disregard that some central government departments continue to have for Section 75. The use of ASBOs contravenes both domestic and international human and children’s rights standards and best practice. Experience of their operation in Britain has shown that they have a disproportionate impact on young people. The NIO acknowledged this fact in their consultation document ‘Measures to Tackle Anti-Social Behavior in Northern Ireland’, issued in January 2004. As such the NIO was obligated, under Section 75, to carry out an EQIA and to consult directly with children and young people on these measures. The NIO did neither. In its consultation document the NIO claimed that it had not carried out an EQIA because an initial screening “confirmed that the proposals in themselves are not likely to have an adverse impact on any of the groups”, despite acknowledging their adverse impact on young people elsewhere in the document. Despite 10 non-governmental organisations lodging a complaint with the NIO for its failure to comply with its Section 75 duties at the time of writing this matter remains unresolved.

In theory Section 75 should ensure that any policies with a potentially adverse impact on children and young people which is not justifiable are identified and amended accordingly. This applies equally to those policies in obvious areas such as health and education but also to broader policies such as the Programme for Government and the Budget. As we have seen above its power can be effectively emasculated if departments chose to act in bad faith in relation to its implementation.


Independent human rights and equality institutions

While significant strides have been made in relation to the protection of children’s rights, particularly under devolution, government cannot by definition fulfill the role of independent champion for children’s rights as required by the UN Committee on the Rights of the Child. With the Belfast (Good Friday) Agreement came a recognition of the need for strong independent institutions to promote and protect the human rights and equality entitlements of everybody living in Northern Ireland. Both the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, established under the Northern Ireland Act 1998 have a duty to monitor and hold government to account in relation to children and young people’s rights protections. While a detailed evaluation of their effectiveness in discharging these duties is beyond the scope of this paper suffice to say that their impact has at best been patchy.

The establishment of the Office of the Commissioner for children and young people (NICCY) in October 2003 represented the most powerful signal yet of the Executive’s willingness to have its ongoing performance in relation to children’s rights issues independently evaluated against the yardstick of the UN Convention on the Rights of the Child. It was an unmistakable acknowledgement by the Executive that while adults and children alike need independent human rights institutions to protect their rights, there are additional justifications for ensuring that children’s human rights receive special attention. Regrettably there is little evidence of the same commitment to children’s rights post devolution.

During the consultation process NGOs lobbied extremely hard to ensure that NICCY would be fully compliant with the Paris Principles, a set of UN standards relating to the status of national human rights institutions for the promotion and protection of human rights. While going further in this direction than most other NHRIs worldwide, NICCY still falls short of full compliance with the Paris Principles on a number of grounds. The enabling legislation is not Article 2 CRC compliant, with children detained in Juvenile Justice Centres enjoying less protection than other children. NICCY’s powers of investigation are limited, the definition of relevant authority is restricted and it would appear that the Commissioner’s office has fewer powers generally in respect of non-devolved bodies. Notwithstanding these limitations hopes are high that the Commissioner for Children and Young People will play a pivotal role in closing the gap between international child rights standards and realities for children and young people in Northern Ireland.


Conclusion

A review of the provisions of the CRC, which enumerates the most comprehensive international standards in relation to children’s rights, serves as a salutary reminder of the enormous gap that continues to exist between its standards and the realities of children’s lives in Northern Ireland. The 2002 concluding observations issued by the UN Committee on the Rights of the UK government’s track record on children’s rights issues serve to underscore this point. Sadly the daily experiences of children and young people across Northern Ireland corroborate this assessment only too well. Almost fifteen years on from the ratification of the UN CRC by the UK government not a single child or young person in this society can claim to have all, let alone the majority of their Convention rights fully respected.

Despite this there are reasons to be cautiously optimistic. Many of the necessary structures and mechanisms to ‘close the gap’ in the full realisation of all children and young people’s rights in this jurisdiction have either recently been put in place or are in the process of being established.

The European Convention on Human Rights, particularly when interpreted in the light of the UN CRC, provides children with a remedy in our domestic courts for breaches of rights protected by the ECHR. However without the full legal incorporation of the UN CRC, as required by the UN Committee on the Rights of the Child, children and young people in Northern Ireland whose rights have been violated continue to be denied the right to a domestic remedy under the UN CRC itself.

The various recent structural developments such as the Commissioner for Children and Young People, the Northern Ireland Human Rights Commission, the Equality Commission and the Children and Young People’s Unit in OFMDFM all have an important role to play in realizing children’s rights. Likewise, Section 75 of the Northern Ireland Act 1998, if adhered to in its spirit as well as in its letter, could ensure the effective proofing all policies with relevance for children and young people as well as their involvement in this proofing process.

Three developments in particular, the Bill of Rights for Northern Ireland as the human rights framework document for Northern Ireland; NICCY as the independent champion for children and young people’s rights and the Children’s Strategy as the overarching framework for all matters relevant to children and young people, offer the combined potential to go a very considerable distance in eliminating the gap between the international standards and the realities of children and young people’s lives in Northern Ireland. However, until all of these initiatives are fully operationalised it is premature to second guess their potential effectiveness in delivering on children’s rights.

Political will is a pre-requisite in bringing about improvements in children’s lives and in this regard the level of political engagement at the Assembly and Executive levels on children’s rights issues was certainly encouraging. Children’s rights issues had begun to work their way up the political agenda and while the Assembly had stopped short of appointing a champion on children’s rights within government, a Children’s Minister, it had begun to deliver results. Regrettably there are worrying signs that in the current direct rule context this progress has been stalled. In fact real concerns exist, given the recent experience of the NIO consultation on ASBOs that the gap in children rights protection may even be widening. In the absence of a return to devolution and local political accountability these concerns will remain.

The challenge for government then is to deliver on the UN CRC standards for all children and young people in Northern Ireland. To do this it will need to ensure that the child rights potential of all of the relevant delivery, co-ordination and monitoring structures and mechanisms is fully realised. Critical to this will be the demonstration of leadership and ‘good faith’ by government departments, other organisations as well as political parties who all carry responsibilities in relation to children and young people. The central role of children and young people, as well as that of broader civic society in this work must also be recognised. It is only in this way that sustained and measurable progress can be made towards closing the gap between the international standards and local realities on children’s rights.



Sara Boyce
Children’s Human Rights Advisor
Children’s Law Centre/Save the Children

3 June 2004