The Roles of Independent Children's Rights Institutions in Advancing Human Rights of Children

Agnes Lux, Brian Gran, Agnes Lux, Brian Gran

• Publisher: Emerald Publishing Limited
• Year: 2022
• ISBN:
  9781801176101
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Independent children's rights institutions (ICRIs) have been established across the world. Endorsed by the UN, they are independent of their governments and endowed with legal powers. Yet we know little about how ICRIs function. How do they work? What impacts their success? What objectives do ICRIs seek to achieve?

The contributors to this edited collection provide first-hand experiences in directing, working for, and studying ICRIs and detail their unique, in-depth accounts of factors shaping ICRIs' efforts to monitor and advance children's rights. Chapters examine ICRIs in Belgium, Germany, Hungary, Ireland, the Netherlands, Pakistan, and the United States, as well as an extraordinary network of ICRIs, and introduce innovative ideas of how to think about ICRIs' independence and legal powers. Offering perspectives from across the world, this volume provides both theoretical and practical insights on a crucial element of children's rights, independent children's rights institutions.

The Roles of Independent Children's Rights Institutions in Advancing Human Rights of Children is essential reading for students, researchers, and scholars interested in studies of sociology of childhood, law and society, children's rights, and human rights.

SECTION 1

CHILDREN’S OMBUDSPERSON’S PERSPECTIVES OF THEIR WORK AND ITS IMPACTS

CHAPTER 1

“BE BOLD, BE BRAVE, SPEAK OUT”: THE ROLE OF THE CHILDREN AND YOUNG PEOPLE’S COMMISSIONER SCOTLAND (CYPCS) DURING THE PANDEMIC

Bruce Adamson and Gina Wilson

ABSTRACT

As an independent children’s rights institution (ICRI), the Children and Young People’s Commissioner Scotland (CYPCS) has contributed to significant changes in children’s rights in Scotland (e.g., the implementation of the UN CRC in Scots national law). Since the establishment of CYPCS in 2004, children living in Scotland have come to be seen as holders of rights. Yet this change has been neither linear nor certain. Instead, the CYPCS has contended with pressures to demean children’s rights, including during the COVID-19 pandemic. As the CYPCS continues to advocate for children’s rights and interests, this ICRI looks forward to bolstering decision making of young people and ensuring security of their rights, which in turn will inform the efforts of the CYPCS.

Keywords: Scotland; ICRI; children’s rights; pandemic; decision making; culture

INTRODUCTION

Scotland has come a long way in terms of recognizing children as rights holders; it has also experienced a sharp wake-up call as a result of the COVID-19 pandemic. Culture change takes time to fully embed, and, under pressure, systems can revert to their comfort zones. Too many times during the pandemic, there has been a reversion to paternalistic approaches to children and young people which failed to recognize them as rights holders.

As an independent children’s rights institution (ICRI), the Children and Young People’s Commissioner Scotland (CYPCS) has provided high-profile scrutiny of decision making by government and public bodies during the pandemic. The views of children and young people have not been meaningfully sought or considered by decision makers, despite many of the constraints of the pandemic significantly affecting children and young people’s access to their rights. CYPCS has worked closely with young advisors and reached out to groups of children, all online, to ensure children and young people inform the work of the Commissioner and their views can be heard during the pandemic.

WHY ARE ICRIS NEEDED?

ICRIs promote and protect human rights set out in a wide array of international laws, but the United Nations Convention on the Rights of the Child (UN CRC) is special. It is the first legally binding international instrument to incorporate the full range of civil, cultural, economic, political and social rights, as well as aspects of humanitarian law for everyone up to age 18—and is the most rapidly and widely ratified international human rights treaty in history. The rights contained in the UN CRC are universal, interdependent, interrelated and explain how those in power must work together to make sure all children and young people can enjoy all their rights.

The UN CRC builds on the Charter of the United Nations (1945) which recognized that the inherent dignity and the equal and inalienable rights of all members of the human family are the foundation of freedom, justice, peace and social progress. The UN CRC breathes life into the Universal Declaration of Human Rights (1948) which proclaimed that childhood is entitled to special care and assistance.

Children don’t have the same political power as adults, they don’t have the same economic power to influence or lobby, our systems of redress are difficult to access – so it is incumbent upon all of those in power to make special efforts to ensure that children’s rights are respected, protected and fulfilled.

The origins of ICRIs and National Human Rights Institutions (NHRIs) go back to the earliest days of the modern human rights framework. In 1946, United Nations Member States were encouraged by the Economic and Social Council to consider establishing “information groups or local human rights committees” to collaborate with them in furthering the work of the Commission on human rights (ECOSOC, 1946, para. 5). However, only since the 1990s have greater details about the roles of ICRIs deepened and been extended with the development of the Paris Principles (UN, 1993), establishment of the European Network of Ombudspersons for Children (ENOC, 1997) and agreement of UN CRC General Comment 2 (CRC Committee, 2002).

ICRIs and NHRIs play an increasing role in providing a link between the regional human rights system and domestic systems. In Scotland, the Equality and Human Rights Commission (EHRC) and the Scottish Human Rights Commission (SHRC) share the role of NHRI.¹ CYPCS is distinctive with its focus exclusively on the human rights of children and having the participation of children and young people central to every aspect of its work. Scotland also has a strong, active and diverse wealth of non-profit organizations which advocate for children’s rights.

While older than Scotland’s NHRIs, CYPCS is a relative newcomer in global human rights terms, having recently celebrated its 18th birthday. This is partly due to the fact that the Scottish Parliament was only created in the late 1990s. The creation of a Children’s Commissioner was a priority in the early days of the Parliament as it developed new democratic systems for Scotland. The Scottish Parliament took evidence from the international experts, Children’s Commissioners and Ombudspersons throughout Europe when the role of the Children’s Commissioner in Scotland was being designed. The Norwegian Ombudsman, Trond Waage, highlighted several approaches that Scotland might follow, “flexibility, creativity, innovation, agenda setting and having children rather than professionals in the driving seat … there should be no hidden agenda if the commissioner is to have credibility.” (Scottish Parliament Official Record, 2003).

On March 26, 2003, all Members of the Scottish Parliament agreed to pass the law to “create a friend – a powerful friend – for all of Scotland’s children and young people.”² The Commissioner for Children and Young People (Scotland) Act 2003 provided a focused approach to promoting and safeguarding the rights of children and young people, underpinned by the UN CRC.

In the final debate on the Act, the Convener of the Committee which led the development of the legislation said:

This gives us the chance to make a real difference by creating an independent, high-profile and influential post. … the most significant legacy that we, as members of parliament, can leave our children and our children’s children. (Scottish Parliament Official Record, 2003)

One young person quoted in the debate said, “The Commissioner isn’t someone standing up for you, it’s someone to help you stand up for yourself.” (Scottish Parliament Official Record, 2003).

In order to be effective as an ICRI, children’s voices and experience must be at the heart of the work. CYPCS involves a diverse range of children and young people in its work. This not only upholds children and young people’s rights but also it ensures their views, experiences and ideas inform all areas of work. It ensures direct accountability to children and young people across Scotland, while working on their behalf.

CYPCS helps to create space for the voices of children and young people to be heard at the national and international levels. During the pandemic, young human rights defenders working with our office engaged at a high level in many different forums, including when they gave evidence via video link to the Education and Skills Committee at the Scottish Parliament in March 2021 (CYPCS, 2021a). They spoke about school closures, exam cancelations, issues around assessments and the impact of the pandemic on mental health. They also expressed their frustration that decisions around these issues were made without consulting or listening to children and young people.

A key part of the role of ICRIs is the review of law, policy and practice. In recent years, CYPCS has focused on three urgent legislative priorities in Scotland: raising the age of criminal responsibility, the full protection of children from physical punishment and the incorporation of the UN Convention on the Rights of the Child into domestic law. CYPCS has contributed to securing legislative changes in all three areas.

Two of the legislative changes have been unqualified successes. The law providing children with full protection from physical punishment brings Scotland into line with the majority of Europe and a growing number of countries globally. The law taking a maximalist approach on incorporation of the UN CRC into domestic law can be understood as a world leading example. The third legislative change was only a partial success.

The age of criminal responsibility is a useful reminder that the powers of a Commissioner have limits. CYPCS galvanized a broad alliance of civil society organizations, a strong evidence base, the voices of children and young people and unprecedented international interventions from Professor Ann Skelton of the United Nations Committee on the Rights of the Child (CRC) and the Council of Europe’s Commissioner for Human Rights (CYPCS, 2019). Despite CYPCS advocating that the age of criminal responsibility should be raised to at least 16, and securing significant support for the international minimum of 14 (CRC, 2019), Scotland has chosen to set its minimum age of criminal responsibility at 12 (in May 2019). This leaves Scotland with one of the lowest ages of criminal responsibility in Europe. CYPCS continues to advocate for the age of criminal responsibility to be raised to ensure that the criminal law is not used to address harmful behavior by children.

HOW DOES THE WORK OF THE CRC AND ENOC INFLUENCE AND SHAPE ICRIS?

Policy network literatures can provide a useful approach to analyze what influences or shapes ICRIs. Policy network concepts invite us to consider the degree to which collaborative networks of like-minded organizations may be closed to some policy actors or overly influenced by mutual dependence (Henry, 2011, pp. 361–383).

In Scotland, CYPCS works within the context of a well-populated children and young people’s sector, which is diverse and politically influential. As a small nation with many interconnections across the agencies which design and deliver public services, awareness of the agendas of collaborative networks is a critical consideration.

At a national level, CYPCS positions itself as primarily providing scrutiny and challenge to the Scottish and UK governments in meeting their UN CRC obligations. In law, CYPCS has statutory independence from government; in practice, CYPCS maintains independence by minimizing direct involvement in government working groups.

ENOC connects ICRIs to establish links, share information and strategies. At the time of writing in 2021, CYPCS is the Chair of ENOC which has 43 members across 34 Council of Europe countries. ENOC updated its statutes underpinning membership of the organization in 2020, in order to better recognize the range of member institutions, respond to changing priorities and strengthen processes for involving children and young people in all aspects of ENOC’s work (ENOC, 2020).

The influence of ENOC membership on national ICRIs can be seen through the increasing focus on collective annual policy interventions (Thomas, Gran, & Hanson, 2011, pp. 429–449). Young advisors have provided important leadership on ENOC’s annual priority topics and informed ENOC’s policy statements – 2018 mental health; 2019 children’s rights in the digital environment; 2020 Child Rights Impact Assessments (CRIA); 2021 impact of COVID-19 on children’s rights; as well as shaping future priority issues such as 2022 climate justice.³ In 2019, ENOC chose CRIA as its priority theme for 2020, committing to carrying out extensive work on CRIA, as a key measure for implementing and advancing the rights of children and young people within its member countries and regions.

The decision to focus on CRIA and Child Rights Impact Evaluation proved to be incredibly insightful as COVID-19 arrived and countries across Europe struggled to address the global health pandemic in a way which properly recognized the impacts of restrictions on children’s rights.

On April 8 2020, the CRC warned of the “grave physical, emotional and psychological effect of the COVID-19 pandemic on children.” The CRC called on States to focus on 11 key areas. In Scotland, CYPCS commissioned an independent CRIA in response to concern at the lack of CRIA from governments and decision makers (CYPCS, 2021b). The Independent CRIA from CYPCS, published in July 2020, was shaped by the 11 key areas identified by the CRC.

A few months later, and based on the combined expertise of members, ENOC agreed on a position statement with recommendations aiming at providing guidance to states, national, regional, European and international authorities on how to implement CRIA and promote the visible integration of children’s rights in decision making. To support this policy position, ENOC created a step-by-step guide (Common Framework of Reference) for carrying out CRIAs to provide a model which is ...

Table of contents

• Cover
• Title
• Introduction
• Section 1. Children’s Ombudsperson’s Perspectives of Their Work and its Impacts
• Section 2. Children’s Ombudspersons Working in Europe
• Section 3. Children’s Ombudspersons in the United States and Pakistan
• Section 4. ICRIs’ Engagement in the UN CRC Monitoring Mechanisms and Questions of Independence
• Section 5. Conclusions
• Index