NIM has provided input to the UN Committee on the Rights of the Child’s planned General Comment on children’s “access to justice” and effective remedies.
The UN Convention on the Rights of the Child (1989) is a distinct convention specifically for children and has been ratified by every country in the world except the United States. The Convention is monitored by an expert body, the UN Committee on the Rights of the Child, which both assesses the State Parties’ fulfillment of the Convention and issues interpretive statements in the form of General Comments. The Supreme Court of Norway has established that such comments should be given significant weight in the interpretation of the Convention on the Rights of the Child, but also notes that one must assess how well the comment is grounded in the wording of the convention, and that a distinction must be made between interpretations of the Convention and recommendations for optimal practices, which should be given less weight (HR-2018-2096-A).
The Committee has decided that its next General Comment, No. 27 in the series, will focus on access to justice and effective remedies. In short, this concerns the requirements set by the Convention for how alleged violations of the convention should be reported, assessed, and potentially remedied. NIM has previously worked extensively on the need to improve domestic complaint mechanisms for children and therefore welcomes a specific General Comment on this topic.
In our input to the development of the Committee’s General Comment, we address some specific issues. First, we emphasize the importance of the Committee grounding its interpretation of children’s right to effective remedies in the Convention on the Rights of the Child in line with the method outlined in Articles 31-33 of the Vienna Convention on the Law of Treaties. This is particularly important because the text of the Convention does not explicitly contain a right to an effective remedy, as is the case in, for example, the UN International Covenant on Civil and Political Rights and the European Convention on Human Rights. Furthermore, we comment on the role of National Human Rights Institutions and Children’s ombudspersons as part of national complaint mechanisms for children.
In our input, we urge the Committee to specifically consider children’s procedural capacity. This relates to the right of children to independently file complaints, lawsuits, and similar legal actions, and to take further legal steps such as appeals. We encourage the Committee to examine the balance between children’s right to self-determination, protection, and the need for assistance. In cases where children should not have procedural capacity themselves, we ask the Committee to comment on the need for children to be adequately represented in a manner that is in their best interests. Often, parents can represent children in legal processes, but not always, for example, where there is a conflict of interest, as some Norwegian child welfare cases have illustrated.
Finally, we request the Committee to provide guidelines stating that systems and requirements must be adapted for children, and that overly strict formal requirements should not be imposed on children’s ability to exercise their right to complain. In this context, we also mention the issue that statutes of limitations for claims can be particularly challenging for children, who may neither have the right to file a complaint independently nor have realized that they may be victims of a human rights violation.
NIM’s full input to the Committee’s General Comment can be read here.
The Committee has invited contributions to the development of the new General Comment from anyone who wishes to comment on it. The Committee will now work on these contributions and will eventually present a draft that can also be commented on. This process can be followed here: OHCHR | Call for submissions on draft general comment No. 27 on children’s rights to access to justice and effective remedies