The CRC: Structure, Content and Some Critical Notes 1 General

The CRC consists of 3 sections: Section I contains the substantive articles (Arts. 1–41), Section II consists of provisions relating to the reporting and monitoring of the implementation of the CRC by the CRC Committee (Arts. 42–45) and Section III concerns the ratification of the CRC, reservations and amendments of the CRC. The substantive articles do not have a simple structure (e.g., one section concerning civil and political rights and another pertaining to economic, social and cultural rights). The order in which the articles appear is, to a large degree, influenced by the revised Polish proposal for the CRC that became the working document in the drafting process.

1.1.4.2. Clustering of CRC provisions

The CRC Committee clustered the articles of the CRC for the purpose of facilitating the reporting on the implementation by States Parties. A total of 8 clusters were established: 1) general measures of implementation; 2) the definition of the child; 3) general principles; 4) civil rights and freedoms; 5) family environment and alternative care; 6) basic health and welfare; 7) education, leisure and cultural activities; and 8) special protection measures (CRC Committee 1991, 1994; Vučković Šahović et al. 2012).

This clustering reflects, to a certain degree, the comprehensive nature of the CRC and the interdependence of the rights. The reporting guidelines have been reviewed over the years, and the most recent one on periodic reporting (2015) indicated development. The review included 3 new clusters: one on violence against children and 2 on the follow-up to the Optional Protocols to the CRC

1.1.4.3. General principles of the CRC

Perhaps the most important decision of the CRC Committee was to qualify 4 provisions of the CRC as General Principles: Article 2 on non-discrimination; Article 3, paragraph 1, on the best interests of the child as a primary consideration in all actions concerning children; Article 6 on the inherent right to life and the right to survival and development; and Article 12 on the right to express views and have them taken into account (Doek 2007; CRC Committee 2009). In making this decision, the CRC Committee was criticised for using the word “principles” because it undermines the concept of rights and misrepresents each State’s legal obligation. Furthermore, it was initially unclear what the Committee meant by the qualification and why these 4 provisions were included as opposed to others, e.g., Article 4 (Abramson 2008; Hanson and Lundy 2017).

However, over the course of time, it became clear that the CRC Committee is of the view that the General Principles should be taken into account when implementing the other articles of the CRC. However, when examining the implementation of the other articles, a systematic assessment of the impact of the General Principles is lacking, excluding the assessment of the General Principles in the General Comments (Doek 2015). In order to provide guidance to the States Parties and others in the implementation of the CRC, the CRC Committee issued General Comments on Article 12 and Article 3, paragraph 1 (CRC Committee 2009, 2013).

1.1.4.4. Recognition of the position of parents

An important element of the CRC is the recognition of the responsibilities, rights and duties of parents. This is important because it acknowledges that the child is not an isolated individual, but part of a family and that States Parties have the obligation to provide all parents with appropriate assistance in the performance of their child-rearing responsibilities “for the purpose of guaranteeing and promoting the rights set forth in the present Convention”(CRC Art. 18, para. 2). It underscores the key role that parents play in the realisation of the rights of the child. This is confirmed in Article 5 of the CRC: “States Parties shall respect the responsibilities, rights and duties of parents [...] to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention” (Lansdown 2005). Furthermore, parents have the primary responsibility to secure, within their abilities and financial capacities, the living conditions necessary for the child’s development. States Parties also have the obligation to assist parents with this responsibility and, when needed, provide material assistance, particularly nutrition, clothing and housing (CRC Art. 27; see also CRC Committee 2017). From these provisions, it is clear that there is a kind of triangle – the child, the parent(s) and the State – with an ongoing challenge to balance the interests of all three (Seymour 2005; Tobin 2005).

It goes without saying that the exercise of these rights and duties will not always be fully practised and realised. Articles 19, 32 and 36 state that the child should not be subject to physical or mental abuse or other forms of maltreatment, neglect or exploitation. If that is the case, the State should take appropriate action to protect the rights of the child (see, for instance, Articles 9 and 19 of the CRC).19 However, it can be considered a serious shortcoming of the CRC that it does not contain specific provisions to ensure that child protection proceedings are conducted in a manner that guarantees the rights of the child and his or her parent(s). The State can interfere with family life and privacy, and the child and the parents should have the right to legal or other assistance and the right to have the decision reviewed by a higher authority or judicial body, for example. The rules of the CRC are limited to the right of the child to have an opportunity to participate and make their views known (Art. 9, para. 2, and Art. 12, para. 2).

In light of Articles 5, 18 and 27 of the CRC, it is incomprehensible that the opponents of US ratification of the CRC portray the CRC as anti-parent and as a treaty that will undermine the role of parents in raising their children (Guggenheim 2005; Todres 2006; Freeman 2007).

1.1.4.5. The evolving capacities of the child

Another important feature of the CRC is the recognition of the potential and growing autonomy of the child. This is reflected in the concept of evolving capacities (CRC Art. 5) and in the rule that due weight must be given to the views of the child in accordance with her or his age and maturity (CRC Art. 12). This recognition is not free from problems, to say the least. Questions arise as to how much weight should be given to the views of the child, not only in court proceedings but also in the family, at school, in the provision of health care and in children’s institutions. Adults have to answer this question and a certain degree of paternalism may play a role. But the concepts of maturity and evolving capacities imply that, in general, the views of older children (adolescents) are given more weight, to the point that their views can be decisive. However, it is unavoidable that the weight given depends on the assessment of the child’s maturity, which is ultimately made by an adult. This may lead to very different decisions (e.g., in court proceedings or regarding health treatment). In that regard, following the views of the child may result in a decision that is contrary to the child’s best interests. We may have to protect the child from an irrational decision that would harm the development of the child (Freeman 2011).

Despite the questions that can be raised, the recognition of the child’s potential and growing autonomy has been an important factor in the development of what is called “the right to participation” (Cantwell 2011). This right can be seen as the result of not only Article 12 but also Articles 13 to 16 of the CRC. The right of the child to express their views implies an active participation in the decision-making processes in all kinds of settings, including the family, at school, in the provision of health care, in court and in the community and/or society (CRC Committee 2009; Parkes 2013). In the field of children’s rights, the participation of children garners a lot of attention and is often seen as a key element in the recognition of the child as a rights holder and agent of social change.20

1.1.4.6. Cultural sensitivity of the CRC

Finally, and in relation to criticism that the CRC is largely influenced by Western culture, Alston asserts: “In cultural terms, the Convention, while by no means perfect, is probably more sensitive to different approaches and perspectives than most of the principal human rights treaties adopted earlier” (Alston 1990). But culture can never be a justification for not implementing the basic human rights of children (or of others), such as the right to a name, the right to alternative care as well as the right to protection from all forms of violence and exploitation, including child marriage and female genital mutilation. Nevertheless, the CRC provides room for interpretation and implementation with respect to cultural, or other, diversity. For instance, the word “appropriate”, which is used 48 times in the treaty, is a key provider of space for accommodating cultural, and other types of, diversity because it requires consideration of what would be suitable in a given cultural context (Arts 2014). It means that the CRC Committee cannot prescribe in detail the measures that each State Party will find appropriate to ensure effective implementation of the CRC (CRC Committee 2003). In General Comment No. 11 (2009), the CRC Committee observed that States Parties are invited to come up with contextual interpretation and stipulates that consultation with indigenous communities is required when determining how the best interests of indigenous children can be decided in a culturally sensitive manner (CRC Committee 2009).