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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Rights of Children

Warren Binford

Subject(s):
Bill of rights — Civil and political rights — Individual rights — Children

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction: History of Children’s Constitutional Rights

1.  ‘Children’s rights’ is a poorly defined concept. Nonetheless, during the 20th century the term has come to mean generally the intersection of human and legal rights as they apply to persons under 18 years of age. Children’s rights constitute both human rights that apply inherently to all persons, in addition to those rights that apply to children due to their unique status. One hundred years ago, national constitutions throughout the world were virtually silent with regard to children’s rights. Today, dozens of constitutions recognize children’s rights to education, protection from abuse and exploitation, non-discrimination, identity, family relations, and more. Some constitutions even recognize children’s political and socio-economic rights. How did the constitutionalization of children’s rights change so rapidly?

2.  This article considers both historical constitutions and those currently in force from countries around the world, including Albania, Angola, Antigua and Argentina, Australia, Austria, Barbuda, the Bahamas, Bangladesh, Barbados, Belgium, Benin, Bosnia and Herzegovina, Botswana, Bulgaria, Brazil, Canada, China, Colombia, the Congo, Costa Rica, Cyprus, the Czech Republic, Dominica, East Timor, Ecuador, Egypt, Ethiopia, Finland, France, Gambia, the German Democratic Republic, Germany, Ghana, Hungary, Ireland, Israel, Italy, Jamaica, Kazakhstan, Kenya. Lebanon, Liberia, Libya, Luxembourg, Madagascar, Malawi, Mauritania, Moldova, Morocco, Namibia, Netherlands, Nigeria, Norway, Oman, Panama, Paraguay, Poland, Portugal, Romania, Russia, Saudi Arabia, Samoa, Senegal, Slovenia, South Africa, Sri Lanka, St. Kitts and Nevis, Sudan, Suriname, Sweden, Switzerland, Tanzania, Togo, Tunis, Uganda, the United States, Venezuela, and as well as case law from Canada, South Africa, and the United States. These countries were included to demonstrate the widespread constitutionalization of children’s rights across nations and regions with various cultures, politics, and religions around the globe, and highlight the widespread influence of international human rights treaties and principles in the process.

3.  Although children’s rights were not recognized until the 20th century, to the extent that they share the same conceptual origins as constitutional and human rights more generally, one can argue that children’s rights can be traced through some of the most important legal documents of the last 800 years, including the Magna Carta (1215), the English Bill of Rights (1689), the French Declaration of the Rights of Man and of the Citizen (1789), and the United States Bill of Rights. Both human rights and the cultural and historical weight accorded to the recognition of rights through constitutional expression are derived from these documents and the values they embodied. But it was the intersection of the more recent rise of international recognition of children’s rights in the global community during the 20th century with the historical precedent of embedding legal and political rights within national constitutions that laid a fertile foundation for the widespread constitutionalization of children’s rights in numerous countries around the world since 1989, when the UN Convention on the Rights of the Child was adopted by the General Assembly. Factor in decolonialization and the collapse of the Soviet Bloc—providing an expansion in recognition of rights-holding populations and opportunities to establish new governments and draft new constitutions—and it becomes clear that children’s rights advocates were provided the perfect moment in history to domesticate what had become nearly universal recognition of children as rights holders—at least in the international community.

4.  International governmental organizations began to recognize children’s rights in a series of international instruments, starting with the League of Nations 1924 Declaration of the Rights of the Child, which was expanded as the United Nations (UN) 1959 Declaration of the Rights of the Child following the dissolution of the League of Nations after World War II. It was during this period that a few countries began to recognize a limited number of children’s rights within national constitutions. For example, Venezuela’s 1947 Constitution recognized children’s right to know their parents (Art. 49(a)), Italy’s Constitution of 1947 gave working children the right to equal wages (Art. 37), and the preamble of France’s Constitution of 1946 guaranteed ‘equal access of children and adults to education, professional training, and culture’.

5.  Generally, when children were recognized at all, their rights were framed as protective rights. For example, Art. 52 of the 1949 Constitution of the Hungarian People’s Republic accorded the young a vague right to ‘special protection’, and Venezuela’s 1947 Constitution provided that children would ‘be protected and judged by special laws’ (Art. 49(c)). Costa Rica similarly included children along with the family, the mother, the aged, and the sick as entitled to undefined ‘special protection’ by the state (1949 Constitution, Art. 51). Those constitutional provisions that were more specific were geared towards protection from exploitation, such as in the case of child labour (Italy Constitution of 1947, Art. 37), but most were geared towards the protection of the child’s family.

6.  In fact, children often were not recognized in constitutions as having their own individual rights in the mid-20th century. Rather, their rights were commonly embedded in relational rights, such as the family, the mother-child dyad, or birth status. For example, Poland’s 1952 Constitution (Art. 67(1)) provided, ‘[t]he State gives particular care to families with many children’, as did Italy’s 1947 Constitution (Art. 31). Numerous countries expressly provided that families generally were entitled to special protection from the state during this period, including Venezuela (Art. 47), Panama (Art. 54), and Argentina (Art. Chap. III, s II); while others made note of the mother-child dyad, such as Italy (Art. 37), the Hungarian People’s Republic (Art. 50(2)), Ecuador (Art. 162), and Argentina (Chap. III, s II(4)). National constitutions from this period also protected the absence of legal family relationships with respect to the child. For example, Panama’s Constitution of 1946 made clear in Art. 58 that ‘[a]ll children are equal before the law and have the same rights of inheritance in intestate succession’, when discussing the status of children born out of wedlock compared to children born in wedlock. Similarly, Poland’s 1952 Constitution provided, ‘[a] child born out of wedlock suffers no loss of rights’ (Art. 67.2), and Panama’s 1946 Constitution included a similar provision (Art. 58).

7.  Even educational rights, which along with family rights and relational derivatives were increasingly included in constitutions drafted in the mid-20th century, were commonly framed in a relational construct. For example, Venezuela’s Constitution of 1947 made clear that it was the parents’ responsibility to educate their children, but it was the state’s responsibility to establish the conditions necessary for parents to fulfil their duties to their children (Art. 49(b)). In other words, children’s rights to education were derived from their parents’ duty to educate them; children were not rights holders of their own accord, especially in relation to the state. Similarly, Argentina’s Constitution of 1949 provided, ‘[t]he responsibility for education and instruction rests upon the family and upon the private and official establishments which collaborate with the family in conformity with the laws’ (Chap. III, s IV), but then went on to provide, ‘[e]lementary primary education is obligatory and shall be free in the State schools’ (Chap. III, s IV.2). Italy’s Constitution of 1947 similarly imposed on parents the duty to provide education, but then committed the state to provide free and compulsory education for at least eight years (Art. 34).

8.  Those constitutions that did recognize an independent right to education during this era were commonly constitutions in communist or socialist countries and the right was not framed as a ‘children’s right.’ Rather, the Constitution of the Hungarian People’s Republic of 1949 referred to the right of education as a worker’s right (Art. 48(1)), and the 1978 Constitution of the People’s Republic of China presents the right to education as a citizen’s right (Art. 51). Although Hungary and China did not frame educational rights as children’s rights, both countries’ constitutions included provisions specifying that they would devote heightened care or attention to the development of the young (Art. 52; Art. 51). Other countries that guaranteed heightened protections to children either individually or through derivate relational rights were Venezuela (Art. 47); Costa Rica (Constitution of 1949, Art. 51); and the German Democratic Republic (Constitution of 1968, Art. 38(3)).

9.  Seldom did a national constitution during this period explicitly refer to the rights of the child as did Panama in that country’s 1946 Constitution, which ‘guarantee[d] the rights of the child until his adolescence’ (Art. 54). Indeed, many of the rights that were recognized during this period constitutionalized discriminatory social constructs based on gender or birth status. For example, whereas some countries eliminated legal bias due to the marital status of a child’s parents at birth (Panama Constitution of 1946, Art. 58 and Polish Constitution of 1952, Art. 67, s 2), other countries, such as Ecuador, legitimized birth status discrimination. Ecuador’s 1946 Constitution expressly provided, ‘[i]n case there are both legitimate and illegitimate children, each illegitimate child shall have a hereditary share equal to one-half of that of each legitimate child’ (Art. 164). Constitutionalized discrimination also is seen in Argentina’s 1949 Constitution with regard to gender, which provided, ‘[p]rimary instruction in the rural schools shall be directed toward ... preparing the girl for domestic duties in the country’ (Chap. III, s IV(2)). Thus, in the period following World War II, the global community saw an increase in the number of national constitutions that mentioned children’s rights, but often these ‘rights’ were subsumed within the family or purely protective in nature, and, at times, were explicitly discriminatory. Indeed, according to Alston and Tobin, ‘in some cases prior to 1990, it might well have been possible to mount a solid argument that there was an inverse relationship between the constitutional recognition of children’s rights and the respect which they were accorded’ (30).

10.  The next major stage in the constitutionalization of children’s rights followed the unanimous adoption of the UN Convention on the Rights of the Child by the General Assembly on 20 November 1989. The Convention quickly broke records for both speed and number with regard to signatories and ratifications. Today, the UN Convention on the Rights of the Child is the most widely ratified human rights treaty in the world. Indeed, every recognized country has ratified the treaty, except the United States, which is a signatory and whose representatives actively participated in the drafting of the text.

11.  Although the UN Convention on the Rights of the Child does not require states parties to incorporate the treaty’s provisions in national constitutions, Art. 4 requires states parties to ‘undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized’. Some scholars have interpreted the obligation to implement the treaty provisions domestically to compel states parties to incorporate a ‘children’s bill of rights’ in the national constitutions of states parties (Nicholson 19). Others recognize that domestic implementation of the UN Convention on the Rights of the Child can be achieved in a variety of manners, including express recognition of children’s rights within national constitutions, constitutions that inherently accord constitutional status to international human rights treaties, or through constitutional jurisprudence (Alston and Tobin 21–22). However, most scholars agree that constitutional recognition of children’s rights does not guarantee respect of those same rights in the daily lives of children living in that country (Tobin 96–98; Bennett Woodhouse 30–31).

12.  In the quarter century since the adoption of the UN Convention on the Rights of the Child, the world has witnessed the power of an international treaty to provide structure and content for national constitutions. When the Republic of South Africa transitioned to a post-apartheid constitutional democracy, its interim constitution included an entire section expressly recognizing a number of fundamental children’s rights (s 30), echoing the UN Convention on the Rights of the Child. When the final constitution was adopted by the Republic of South Africa in 1996, it expanded on those initial rights and provided greater express recognition and protection of children’s rights than had been embodied in any other country’s constitution previously (s 28). The rights enumerated in s 28 are without limitation and are held by children in addition to most of the rights held by other (adult) citizens of South Africa.

13.  Since the UN Convention on the Rights of the Child entered into force and the final Constitution of the Republic of South Africa was adopted, the world has witnessed a widespread surge in the express recognition of children’s rights in national constitutions. For example, at least seven countries that historically did not expressly recognize children’s rights in their national constitutions recently have amended their constitutions or adopted new ones to include children’s rights provisions, including Belgium (Art. 22), Cyprus (Art. 40), Kenya (Art. 53), Morocco (Art. 32), Norway (Art. 104), Sweden (Art. 2), and Tunisia (Art. 47). Indeed, of the constitutions that do not guarantee the right to education, for example, the overwhelming majority of them (91 per cent) were adopted prior to ratification of the UN Convention on the Rights of the Child (World Policy Center). Moreover, the majority of the constitutions that guarantee the right to free and compulsory education were adopted after or in the same year the UN Convention was ratified (World Policy Center). These trends suggest the nearly worldwide ratification of the UN Convention of the Rights of the Child since 1989 appears to be increasing the constitutionalization of children’s rights around the globe, both in express constitutional provisions, as well as in recent constitutional jurisprudence developing in numerous courts from South Africa to the United States.

B.  The Scope of Children’s Constitutional Rights Today

14.  Not all countries that have incorporated children’s rights into their constitutions since 1989 include comprehensive and detailed sections on children’s rights such as that witnessed in the final Constitution of the Republic of South Africa. Some countries include short but potent statements incorporating children’s rights in the country’s constitution. For example, East Timor’s constitution simply provides: ‘Children shall enjoy all rights that are enshrined in international conventions normally ratified or approved by the State’ (s 18(2)). Other countries provide constitutional protection for children’s rights through a more general provision incorporating international human rights treaties directly into the legal system, such as Benin (Preamble; Art. 7), Bulgaria (Art. 5), Russia (Art. 15(4)), and Senegal (Preamble; Art. 98). Others articulate specific detailed rights held by children, usually around themes outlined in the UN Convention on the Rights of the Child, such as education, family rights, non-discrimination, civil and political rights, protection from abuse and exploitation, health and well-being, and juvenile justice. Moreover, a few countries also include the child welfare principle embodied in Art. 3(1) of the Convention, which requires that the ‘best interests’ of the child be a primary consideration in all actions concerning children.

1.  Education

15.  Consistent with the trend prior to 1989, the constitutions adopted subsequent to the UN Convention on the Rights of the Child commonly recognize the child’s right to education. For example, Benin signed the Convention on 25 April 1990, ratified it three months later on 3 August 1990, and by the year end, adopted a constitution that expressly guaranteed the education of children by the state and public authorities (Art. 12). Benin is not unique. Today, approximately 77 per cent of national constitutions recognize the right to education (primary education), including 31 per cent who recognize the right to guaranteed secondary education (World Policy Forum). Whereas some countries, such as Kenya, now recognize the right to basic education (Art. 53), other countries, such as Switzerland, have expanded the recognition of children’s educational rights to include special needs education (Art. 62.3). Indeed, in a survey of 186 national constitutions conducted eleven years after the UN Convention entered into force, the UN Special Rapporteur on the Right to Education found that 142 of the constitutions explicitly guarantee the right to education (UN Doc. E/CN.4/2001/52).

2.  Family Rights

16.  In addition to education rights, family rights also continue to appear prominently in post-1989 constitutions with countries such as Morocco continuing to identify the family as the basic social unit and a commitment to protect the family (Art. 32). However, in addition to promises to promote and protect the family generally (protection of the family), an increasing number of constitutions now expressly recognize the child’s right to be raised by one’s parents, which is consistent with Art. 7(1) of the UN Convention on the Rights of the Child. For example, the Constitution of the Republic of Kenya provides, ‘[e]very child has the right ... to parental care and protection’ (Art. 53(1)(e)), while the Constitution of the Republic of Malawi states, ‘[c]hildren have the right to know, and to be raised by, their parents’ (s 23(3)). As before, children who lack a family are guaranteed special care and protection in numerous constitutions ranging from Poland (Art. 72(2)), to Slovenia (Art. 56(4)), to Uganda (Art. 34(7)).

3.  Non-Discrimination

17.  It is common for constitutions adopted after the UN Convention on the Rights of the Child to continue to provide for non-discrimination based on birth status, which is a form of discrimination that children have a higher risk of experiencing due to their greater dependence on the family and the parent-child relationship for identity and survival. For example, Ethiopia’s constitution provides, ‘[c]hildren born out of wedlock shall have the same rights as children born of wedlock’ (Art. 36(4)). However, many countries now provide express constitutional recognition of the right to freedom from discrimination based on race and gender as well. According to the World Policy Center, over 90 per cent of the constitutions adopted since 1990 guarantee gender equality, and ethnic and racial equality is constitutionally recognized on a widespread basis as well (Constitution of the Republic of Albania, Art. 20(1); Constitution of the Republic of Ecuador, Art. 11(2); and Moldova Constitution, Art. 16(2); racial discrimination). However, such rights of non-discrimination are not unique to children, so it is especially important to note those constitutions that separately provide for the equality of all children without limitation or reference to birth status, such as the Constitution of Finland, which states, ‘[c]hildren shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development’ (Chap. 2, s 6). This provision is notable for another reason: Finland’s is one of the few constitutions to include language recognizing the evolving capacity of the child, which is outlined in Art. 5 of the Convention on the Rights of the Child. Other constitutions that expressly refer to the child’s evolving capacity are Poland’s (Art. 48(1)) and Slovenia’s (Art. 41(3)).

4.  Civil and Political Rights

18.  Finland’s constitution is distinctive not only due to its reference to the evolving capacity of the child. It is one of the few but growing number of constitutions that recognizes the child’s participation rights, along with Poland (Art. 72(3)), Switzerland (Art. 11(2)), and others. These rights were recognized in Art. 12 of the UN Convention, and are far more commonly constitutionalized than more specific participation and political rights such as the right to freedom of expression (Colombia, Art. 44). Ecuador, which has one of the most progressive constitutions in the world today, recognizes children’s right to both freedom of expression and freedom of association (Art. 39). However, countries continue to be far more comfortable viewing children as in need of protection and provision, rather than individual actors with political rights. Thus, far more countries have constitutionalized children’s right to social security (Angola, Art. 81, Romania, Art. 49(2), and Uganda, Art. 34(3)), for example, than children’s participation and political rights.

5.  Protection from Abuse and Exploitation

19.  This framing of the state as protector of the child (in addition to the family’s similar role) makes it predictable that protection from abuse and exploitation would be a right that would be commonly constitutionalized post-1989. Protection from violence and abuse is a right recognized in Art. 19 of the UN Convention on the Rights of the Child. Thus, numerous national constitutions such as the Constitution of the Republic of Albania (Art. 54(3)) and Poland’s 1997 Constitution (Art. 72(1)) include provisions recognizing children’s right to be protected from violence. In addition, numerous countries also continue to recognize their role in protecting children from harmful and exploitative child labour and so include relevant constitutional provisions to that effect, including Angola (Art. 80(5)), Colombia (Art. 44), Romania (Art. 49(3) and (4)), and Slovenia (Art. 56).

20.  In addition to protecting children from violence and child labour, countries that have adopted constitutions since 1989 are far more likely to include provisions regarding other forms of abuse and exploitation. For example, the constitutions of Colombia (Art. 44) and Ecuador (Art. 46(4)) both include provisions recognizing children’s right to be protected from sexual exploitation. The same provision in Colombia’s constitution also includes recognition of the right of children to be protected from trafficking. A similar provision is found in Paraguay’s Constitution (Art. 54). These specific rights track Arts 34 and 36 of the UN Convention on the Rights of the Child and are in addition to Art. 36 of the Convention, which recognizes the right of the child to be protected from exploitation generally. The right articulated in Art. 36 is embodied in numerous constitutions, including Art. 72(1) of Poland’s 1997 Constitution, Art. 50(4) of the Moldova Constitution, and Art. 36(1)(d) of Ethiopia’s Constitution. In other words, there appears to be an increase in the number of countries constitutionalizing the child’s right to be protected from abuse and exploitation generally, as well as specific types of abuse and exploitation such as child labour, sexual exploitation, and trafficking.

6.  Health and Well-Being

21.  Health and well-being is another theme around which a cluster of children’s rights appears to be forming (right to health). Although some countries, such as Portugal (Art. 64(2)) and Brazil (Art. 227) provided for health services in their constitutions prior to their ratification of the UN Convention on the Rights of the Child, other countries are also recognizing health rights specifically in the enumeration of children’s rights in their constitutions, such as Colombia (Art. 44) and South Africa (Art. 28(1)(c)). However, recognition of universal healthcare rights is also becoming increasingly common. Fifty seven per cent of national constitutions have a guaranteed approach to health and another 18 per cent have a limited approach to health (World Policy Forum). In addition to health services, national constitutions adopted after 1989 continue to recognize foundational health rights such as the right to life in Art. 36(1)(a) of Ethiopia’s constitution. Although the drafters of the UN Convention on the Rights of the Child did not intend the right to life recognized in Art. 6(1) to prohibit abortion, some countries have constitutionalized the right according to that interpretation. Thus, Art. 22(2) of Uganda’s constitution provides, ‘No person has the right to terminate the life of an unborn child except as authorized by law.’

22.  More commonly, children’s rights to health and well-being are framed as a right to survival and development. This approach is evident in the constitution of Angola, which provides, ‘[p]ublic policies regarding the family, education and health must safeguard the principle of the higher interests of the child, as a means of guaranteeing their full physical, mental and cultural development’ (Art. 80(2)), as well as the constitutions of Paraguay (Art. 54) and Ecuador (Art. 44). Arguably, the increasing constitutionalization of children’s rights to leisure, recreation and cultural activities, as outlined in Art. 31 of the UN Convention on the Rights of the Child, could also represent an increasing recognition of the child’s right not only to health, but also well-being (Angola, Art. 81.1(d) and Moldova, Art. 50.5).

7.  Juvenile Justice

23.  Juvenile justice is another thematic cluster of children’s rights that are increasingly being constitutionalized. These rights range from a prohibition on the detention of children in Namibia (s 15(5)) to a right to a legal representative in South Africa (Art. 28(1)(g)) to an outlining of general rights when detained in Malawi (s 42(g)). One of the juvenile justice rights that has been most frequently recognized in national constitutions is the right of children to be separated from adults when incarcerated. Gambia (s 29(3)) and Ethiopia (Art. 36(3)) are just two of the countries that recognize this right. Arguably, the right to be free of torture (prohibition of torture) and deprivation of liberty, outlined in Art. 37 of the Convention on the Rights of the Child, overlaps with juvenile justice, but is not limited to those circumstances. Both Ghana (Art. 28(3)) and Ethiopia (Art. 36(1)(e)) embed that right in their constitutions.

8.  Best Interests of the Child

24.  In addition to these and other thematic rights that are being recognized in an increasing number of constitutions around the world, there is a cornerstone right that, ‘[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’ (UNCRC, Art. 3(1)). Thus, for example, the Republic of Angola included Art. 80(2) in its 2010 Constitution: ‘Public policies regarding the family, education and health must safeguard the principle of the higher interests of the child, as a means of guaranteeing their full physical, mental and cultural development.’ Similarly, Art. 44 of Ecuador’s 2008 Constitution provides: ‘The State, society and the family shall promote as a priority the integral development of children and adolescents and shall guarantee the full exercise of their rights; the principle of the higher interest of children shall be upheld and their rights shall prevail over those of other persons.’ Various other countries also include language in their constitutions referring to the best, or at least, the ‘higher’ interests of children, including Ethiopia (Art. 36(2)), South Africa (Art. 28(2)), and Uganda (Art. 34(1)).

25.  Together these thematic clusters that appear increasingly in the national constitutions adopted after 1989 suggest children’s rights are being constitutionalized on a selective basis. The appearance of these clusters also suggests that international treaties can have a potentially powerful impact on domestic law, including constitutions, even where, as here, the treaty does not expressly require that its provisions be incorporated in states parties’ constitutions.

C.  Challenges to the Implementation of Children’s Constitutional Rights

26.  Despite the significant increase in recognition of children’s rights in the national constitutions of numerous countries since 1989, many do not expressly recognize children as unique rights holders with additional, specific rights beyond those held by adults in their national constitutions. Examples include Antigua and Barbuda, Australia, Austria, Bahamas, Bangladesh, Barbados, Bosnia and Herzegovina, Botswana, Canada, Czech Republic, Dominica, France, Israel, Jamaica, Kazakhstan, Lebanon, Liberia, Libya, Luxembourg, Mauritania, Netherlands, Nigeria, Oman, Samoa, Saudi Arabia, ,St. Kitts and Nevis, Sri Lanka, Tanzania, and the United States. There are multiple reasons for their omission depending on the circumstances of the country. For example, the United States Constitution was drafted in 1787 and amendments are infrequent. In the case of Australia, the constitution is silent as to all rights, not just the rights of children.

27.  Nonetheless, many of these countries recognize children as rights holders in the country’s constitutional jurisprudence. For example, in G v An Bord Uchtála, the Supreme Court of Ireland recognized the child’s ‘natural and imprescriptible’ rights under Art. 42.5: ‘The child also has natural rights … [T]he child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human person’ (G v An Bord Uchtála (1980) (Ire)). Similarly, the Supreme Court of the United States recognized that children have constitutional rights in Powell v Alabama (1932) (US), although subsequent decisions have made clear that children’s constitutional rights in the United States in many ways are lesser than the constitutional rights enjoyed by adults (Dailey 2100). The Supreme Court of Canada (Cour suprême du Canada) also recognizes children’s rights in its constitutional jurisprudence, and has provided analytical constructs for interpreting and applying some of the more advanced children’s right principles, such as evolving maturity and the best interests of child (Manitoba Director of Child and Family Services v CA (2009) (Can)).

28.  Even in countries like South Africa, where children’s rights are express and detailed, constitutional jurisprudence has further enhanced those rights through interpretation of more general constitutional rights to apply to children, with potentially a life-saving impact. For example, in Minister of Health v Treatment Action Campaign (2002) (S Afr), the citizens’ right to healthcare under Section 27(2) was interpreted by South Africa’s Constitutional Court to compel public hospitals and clinics to provide an anti-retroviral drug to reduce the transmission of HIV/AIDS from mother to child.

29.  Despite the recent increased recognition of children’s rights both expressly in national constitutions and through the interpretations of constitutional jurisprudence, challenges remain to further incorporation of children’s rights. Recent efforts to include the best interests principle in the text of Ireland’s constitution were met with a vocal and apparently coordinated resistance primarily from religious groups (O’Mahony 9, 11–18). Bennett Woodhouse describes the cultural residue of the United States, including the vestiges of patriarchal constructs and the historical classification of children as property, which hampers the full realization of children’s rights in that country, while Nicholson decries Australia’s ambivalence toward international law as contributing to that country’s resistance to constitutionalizing children’s rights (international human rights law and municipal law).

30.  The perception of potential conflict between children as separate, individual rights holders and the authority of parents to exercise their parental rights vis-à-vis the child creates the basis for much of the resistance to the recognition of children’s rights. For example, the child’s right to education may conflict with a parent’s right to religious freedom in a case similar to Wisconsin v Yoder (1972) (US), in which Amish parents successfully petitioned to remove their children from the public education system after eighth grade so that they could direct the religious upbringing of their children. Although that case was framed differently than a direct conflict between the children’s right to education and the parents’ right to religious freedom, it reminds both jurists and framers of the importance of developing principles and mechanisms to resolve potential conflicts between the respective constitutional rights of parents and children so that both can be recognized and exercised, rather than have the rights of children denied or suppressed. One way to help balance these rights is to utilize the approach that South Africa and other African countries used, which is to counterbalance rights with responsibilities (s 28). Another approach is to create mechanisms for emancipation from the legal state of childhood or judicial bypass of parental authority in circumstances such as a minor’s decision to terminate her pregnancy. Finally, some principles are widely accepted such as the child’s right to be free from harm trumps a parent’s right of custody of the child where a child is being abused or severely neglected. Although there are a number of cultural and legal constructs that children face in trying to overcome the barriers to the full realization of their rights through domestic implementation, there are mechanisms and principles that can be developed to help overcome these barriers.

31.  Overcoming the barriers to the incorporation of children’s rights in constitutions, of course, does not guarantee successful implementation and realization of children’s rights in their daily lives. For example, despite the progressive nature of South Africa’s constitution vis-à-vis children’s rights, the nation still struggles to combat poverty, inequality, discrimination, disease, and other impediments to the full realization of those rights (Binford 354–363). In contrast, the United States and Australia do not have the express recognition of children’s rights in the texts of their constitutions, and yet their relative economic and political strength provides an alternative, and arguably more effective, construct for the realization of children’s rights. Some might ask rhetorically whether one would rather have a right to food or food itself, but why cannot children have both? Ideally, the goal of all societies should be both to recognize expressly and formally the rights of children through enduring legal constructs such as constitutions, as well as to create strong and vibrant social, economic, and political constructs that ensure the full realization of those rights.

D.  Conclusion

32.  In less than a century, the world has witnessed a significant increase in the recognition of children’s rights both in the express language of national constitutions and in constitutional jurisprudence. Whereas before, all constitutions were silent as to children as rights holders, dozens of constitutions now recognize children as a distinct class of individuals who enjoy certain rights based on their unique status as children, in addition to more general constitutional rights that they share with adults, such as rights to equality and non-discrimination. Whereas the first major wave of these rights appeared in constitutions drafted after World War II, the larger wave occurred following the adoption of the UN Convention on the Rights of the Child in 1989. The potential impact of the Convention is most powerfully seen by comparing s 28 of the South African Constitution to the Convention. Most constitutions do not include the robust and detailed provisions regarding children’s rights evident in the South African Constitution. In constitutions adopted after 1989, however, one can trace the influence of the UN Convention on the Rights of the Child, showing the power of international law to transform constitutional principles into enforceable rights for a population that historically has been largely ignored. Despite that power, framers must be mindful of the fact that even that transformation of constitutional principles into enforceable rights under the influence of international law does not guarantee the realization of those rights in children’s daily lives.

Select Bibliography

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  • Dailey, AC, ‘Children’s Constitutional Rights’ (2011) 95 University of Minnesota Law Review 2099.
  • Nicholson, A, ‘The United Nations Convention on the Rights of the Child and the Need for Its Incorporation into a Bill of Rights’ (2006) 44 Family Court Review 5.
  • Ofodile, UE, ‘The Universal Declaration of Human Rights and the African Child Today: Progress or Problems?’ (2009) 25 American University International Law Review 37.
  • O’Mahony, C, ‘The Challenge of Constitutionalising Children’s Rights in Ireland’ 5th World Congress on Family and Children’s Rights, Halifax, Canada (24 August 2009).
  • Tobin, J, ‘Increasingly Seen and Heard: The Constitutional Recognition of Children’s Rights’ (2005) 21 SAJHR 86.
  • Tomaševski, K, (Special Rapporteur on the Right to Education), Annual Rep. of the Special Rapporteur on the Right to Education, UN Doc. E/CN.4/2001/52 (11 January 2001).
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Select Constitutions