Children

793. There is no dispute that NHRIs should be mandated to promote and protect children, particular for the countries that have ratified the CRC. The General Comment No. 2 of the CRC said:-

“Article 4 of the Convention on the Rights of the Child obliges States parties to

‘undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention’. Independent national human rights institutions (NHRIs) are an important mechanism to promote and ensure the implementation of the Convention, and … the establishment of such bodies to fall within the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights.”⁸⁴⁸

794. The Committee on the Rights of the Child has consistently encouraged all the States whose reports it examines to establish independent offices to promote the human rights of children.

795. For instance, the Committee on the Rights of the Child, in its Concluding Observations of 2003, expressed that Italy has “no central independent mechanism to monitor the implementation of the Convention which is empowered to receive and address individual complaints of children at the regional and national levels”. Therefore, the Committee recommends that Italy Government establish “a national independent ombudsman for children – if possible part of a National Independent Human Rights Institution” in accordance with the Paris Principles. Such institution should be “accessible to children, empowered to receive and investigate complaints of violations of child rights in a child-sensitive manner, and equipped with the means to address them effectively.”⁸⁴⁹

847 See para … of this Report.

848 UNCRC, General Comment No. 2, paragraph 1.

849 Italy (CRC/C/15/Add.198, 31 January 2003), paragraph 14.

796. In Canada, the Standing Senate Committee on Human Rights in 2005 also recommended

“the Parliament enact legislation to establish an independent Children’s Commissioner to monitor implementation of the Convention on the Rights of the Child, and protection of children’s rights.”⁸⁵⁰

797. In April 1999, the International Coordinating Committee on National Institutions recognized that promoting and protecting children’s rights should be a priority area in the work of NHRIs, inter alia, through the adoption of national legislation, ratification and implementation of international instruments, human rights education and promotion, and national economic policy.⁸⁵¹

798. Similarly, regional coordination arrangements like Asia Pacific Forum of National Human Rights Institution and the Council of Europe have promoted the establishment of independent institutions to improve children’s rights among their member states.⁸⁵²

799. In Latvia, the LNHRO Section for Protection of the Rights of the Child commenced its operation on 2 May 2003. Since 1997 the LNHRO is a full member of the International Ombudsmen Institute, while the Section for Protection of the Rights of the Child in October 2003 became a member of the European Network of Ombudsmen for Children.⁸⁵³

1.7.1. The separated children’s commission or a specialized unit under the HKHRC?

800. However, the question of whether a special unit on children’s right within the HKHRC or an independent children’s commission, which would operate outside the HKHRC is more appropriate for Hong Kong is controversial.

801. The Committee on Children’s Rights doesn’t expressly spell out its preference as to whether a state party should set up a stand-alone children’s rights commission, or build the children-focused institution into existing or a new general human rights commissions or general ombudsman offices. The General Comment No. 2 of the CRC said:-

850 Standing Senate Committee on Human Rights, Interim Report (19^th Report), “Who’s In Charge Here? Effective Implementation of Canada’s Obligation with Respect to the Rights of Childern,” (November 2005), available at http://www.parl.gc.ca/38/1/parlbus/commbus/senate/Com-e/huma-e/rep-e/rep19nov05-e.htm, at 96,

recommendation 3 [hereinafter Who’s In Charge Here].

851 International Coordinating Committee on National Institutions, “National institutions for the promotion and protection of human rights,” (A/RES/54/176, 15 February 2000) at 1.

852 Fourth Annual Meeting of the Asia Pacific Forum of National Human Rights Institution in September 1999;

Council of Europe, “Recommendation 1286 on a European Strategy for Children,” Luxembourg 28-01-2005 (CRC/C/15/Add.250, 24 January 1996), paragraph 15.

853 The Republic of Lativa, “Periodic Report on the Implemetation of the UN 1989 Convention of the Rights if the Child by the Republic of Lativa During the Period From 2001 Until March 2004,” avialble at

http://www.bm.gov.lv/files/text/doc.doc, paragraphs 28-9.

“While adults and children alike need independent NHRIs to protect their human rights, additional justifications exist for ensuring that children’s human rights are given special attention. These include the facts that children's developmental state makes them particularly vulnerable to human rights violations; their opinions are still rarely taken into account; most children have no vote and cannot play a meaningful role in the political process that determines Governments’ response to human rights; children encounter significant problems in using the judicial system to protect their rights or to seek remedies for violations of their rights; and children’s access to organizations that may protect their rights is generally limited.⁸⁵⁴

“Specialist independent human rights institutions for children, ombudspersons or commissioners for children’s rights have been established in a growing number of States parties. Where resources are limited, consideration must be given to ensuring that the available resources are used most effectively for the promotion and protection of everyone’s human rights, including children’s, and in this context development of a broad-based NHRI that includes a specific focus on children is likely to constitute the best approach. A broad-based NHRI should include within its structure either an identifiable commissioner specifically responsible for children’s rights, or a specific section or division responsible for children’s rights.⁸⁵⁵

802. Nonetheless, it can be observed from the above passage that, a specialized children’s commission is in principal more preferable because a specialized commission can better represent children’s interest than a specific unit under the general human rights commission.

803. First, children are very different from adults in terms of vulnerability and their communication ability; and hence there needs “a child centered focus which is different an ombudsman perspective usually.”⁸⁵⁶ [I think this is a mis-quote.] An ombudsman or a human rights commission always performs as if it is neutral and fair, but in advocacy the responsible institution may need to take sides and to represent the views and interests of the child.⁸⁵⁷

804. Second, conflicts often arise between the rights of children and adults, particularly in respect of arrangements following divorce, use of physical punishment or arranged marriages. “A specialized institution would have a clear responsibility to promote

854 UNCRC, General Comment No.2, paragraph 5.

855 Id, paragraph 6.

856 Michele McBride, “Report on Child Advocacy and Complaint Resolution Process,” (April 2006), available at http://www.childyouthreview.ca/down/Child_Advocacy_and_Complaint_Resolution_Process.pdf at 48.

857 Id.

children’s rights in any such conflict. In an integrated body it may be difficult to ensure a dedicated focus on the rights of children, rather than the rights of adults.”⁸⁵⁸

805. Thirdly, many abuses of child rights are perpetrated not by the state but by the adults who have responsibility for children, for example parents, teachers, residential workers.

UNICEF observed that if an NHRI is primarily focused on abuse of adult rights by the state, it is often poorly equipped to protect children’s rights.⁸⁵⁹

806. Fourthly, ombudsmen for children or children’s commissions have been established in a large number of countries, for example, Australia, New Zealand, Norway and Sweden.

The UNICEF also observed that there are to date more separate children’s rights institutions than institutions subsumed under a general human rights commission.⁸⁶⁰ It’s probably because of the fact that “traditionally children’s rights have not been given distinct and appropriate attention within a “general” institution.”⁸⁶¹

807. However, due care should be taken to avoid any duplication of jurisdiction if an independent Children’s Commission is established. The Committee on the Rights of the Child in its concluding observations in 2003 was concerned about the possibility of duplication of activities between the National Human Rights Commission and the Office of the Commissioner for Children in New Zealand. The Committee recommends the Office of the Commissioner for Children and the National Human Rights Commission define the relationship between the two institutions, including a clear division of their respective activities.⁸⁶²

808. Strictly speaking, in a nation or a region with limited resources, a specialized unit on children’s right established under a general human rights commission, or the appointment of an expert of children’s rights can discharge the international obligations under the CRC.

809. The Committee on the Rights of the Child, in its concluding observations in 2005, recommended the Australian Government “create specialized sections within the offices of the various state and territory ombudsman to deal with issues relating to children.”⁸⁶³ 810. The Committee on the Rights of the Child, in its concluding observations in May 2003,

while welcoming the establishment of the National Commission on Human Rights in Korea in 2001, expressed that the Commission has no specialization in children’s rights.

The Committee recommended that there should be “at least one child rights expert

858 UNICEIF, “Independent Institutions Protecting Children’s Rights,” Innocenti Digest No. 8, (June 2001), available at http://www.unicef-icdc.org/publications/pdf/digest8e.pdf at 10.

859 Id.

860 UNICEF Innocenti Research Centre, “Study on the Impact of the Implementation of the Convention on the Rights of the Child,” (2004), available at http://www.unicef.org/why/files/CRC_Impact_webversion.pdf at 20.

861 Id.

862 New Zealand (CRC/C/15/Add.216, 27 October 2003), paragraph 12.

863 Australia (CRC/C/15/Add.268, 20 October2005), paragraph 16.

amongst the Commissioners, or alternatively, that the Commission establish a subcommittee on children’s rights”.⁸⁶⁴

811. It is submitted in Hong Kong where the territory and population are relatively small as compared to other commonwealth nations, it is feasible for the HKHRC to promote and enforce children’s rights on par with other areas of concerns. In fortiori, if a HKEOC is established on par with the HKEOC, the establishment of an additional children’s commission is bound to produce duplication of functions and jurisdiction.

812. Given the vulnerability and the low communication ability of children, the potential conflicts between the rights of adults and that of children, and expertise required to handle children abuse, a specialized unit on children’s rights, or alternatively, a subcommittee on children’s rights under the board of commissioners should be set up in the HKHRC to avoid any potential compromise and loss of sight on children’s rights.

1.7.2. Listening to the children

813. In operation, the Children’s unit within the HKHRC, or children’s subcommittee of the board of commissioner, or an independent children’s commission, if any, should make sure that the voices of children are heard directly, but not merely as the interpretation of adult wishes.

814. According to Article 12 of the Convention on the Rights of the Child, children have a right to express their views and to have their views taken seriously in all matters affecting them. As the Committee on the Rights of the Child stated, the Children’s Commissioner should have direct contact with children and ensure that children are appropriately involved and consulted.⁸⁶⁵

815. General Comment No 5 of the CRC states that:-

“[I]n many cases, only children themselves are in a position to indicate whether their rights are being fully recognized and realized. Interviewing children and using children as researchers (with appropriate safeguards) is likely to be an important way of finding out, for example, to what extent their civil rights, including the crucial right set out in article 12, to have their views heard and given due consideration, are respected within the family, in schools and so on.”⁸⁶⁶

864 Republic of Korea (CRC/C/15/Add.197, 18 March 2003), paragraph 18.

865 UNCRC, General Comment No. 2, paragraph. 16.

866 United Nations Committee on the Rights of the Child, General Comment No. 5, “General measures of

implementation of the Convention on the Rights of the Child,” (CRC/GC/2003/5, 3 October 2003), paragraph 120.

816. The Standing Senate Committee on Human Rights in Canada went as far as to suggest that the Children’s Commissioner should have a statutory obligation to listen to and involve children meaningfully and effectively.⁸⁶⁷

1.7.3. Developing creative strategies

817. Sometimes, the NHRIs need to develop creative strategy in gathering opinion from the children and to promote the Convention.

818. For example, the New Zealand Children’s Commissioner collects primary information from a young people’s reference group, which provides the Office of with Children’s Commissioner with representation and perspectives from children across the country.

819. The CRC recommended Latvia in 2001 “develop more creative methods to promote the Convention, including through audiovisual aids such as picture books and posters.”⁸⁶⁸Following the Committee Recommendations, in 2003 the SMSACFA received the UNICEF funding for translating and publishing the book entitled

“Implementation Handbook for the Convention on the Rights of the Child”.⁸⁶⁹ In 2004, the Latvia Government is planned to use the UNICEF funding to distribute “The Principal Positions Latvia Fit for Children” free of charge.⁸⁷⁰

820. Hence, the HKHRC, its specialized unit on children’s rights, or subcommittee of the board of commissioners on children’s rights, should listen to the children directly and should devise “specially tailored consultation programmes and imaginative communication strategies” to ensure adequate communication between the children and the institution.⁸⁷¹ It should “specifically direct age-appropriate information toward young people” and should communicate with child in person whenever possible.⁸⁷²