Interpreting the rights of the child: Look South (A lot further than Westminster)

By Kate Mackenzie - Posted on 2 July 2021

This post is reproduced with permission from the Scottish Graduate School for Arts and Humanities Research Blog.

In this guest post, University of St Andrews PhD researcher Kate Mackenzie discusses the upcoming UK Supreme Court decision on the Scottish Government’s Rights of the Child Bill and explains how child laws in Central Africa could set a precedent.

It is perhaps a feature of the life of a PhD researcher that, even when you emerge from the books and screen, you see your topic reflected in the world around you, like some form of afterimage. I live a long way, in every sense, from the subject and setting of my corpus texts – children living in conflict in two Central African countries. But the issue of children’s rights, and the complexities underlying that apparently simple concept, are all around us and a topic of live discussion here and now in Scotland.

On 16 March 2021, the Scottish Parliament voted unanimously to incorporate the United Nations Convention on the Rights of the Child (Scotland) Bill into Scots law. On 28 June, the UK Supreme Court is scheduled to consider whether the Scottish Government has the authority to implement the Bill. If the Bill does become law, what will incorporation mean in practice? We can look at the impact of the Human Rights Act (1998), which incorporated the European Convention on Human Rights into UK law; or we can look North to Scandinavia (naturally), where Finland, Norway and Sweden have already incorporated the UNCRC. But much further South there is another example of a living children’s rights instrument in the African Charter on the Rights and Welfare of the Child and the work of African Committee of Experts on the Rights and Welfare of the Child.

The UNCRC, adopted in 1989, is the most widely ratified international human rights treaty. But it contains many vague or indeterminate concepts which have contributed to the on-going gap between ideal and implementation. References to ‘the best interests of the child’ and ‘the evolving capacities of the child’ beg the question – as determined by whom? With incorporation as proposed in the Bill, it will be the duty of Scottish authorities to interpret and clarify such concepts and their application, and for Scottish courts to settle any dispute. 

When the European Convention on Human Rights (ECHR) was incorporated into UK law by the Human Rights Act (1998), this allowed UK courts to interpret the provisions of the ECHR. But a crucial difference was that the ECHR already had a judicial mechanism, the European Court of Human Rights in Strasbourg, which had built up decades of case law for UK courts to draw upon. The UNCRC has no such mechanism. A communications procedure – ie a mechanism for individuals or organisations to bring complaints to a UN expert committee – was introduced in 2014 by Optional Protocol 3 (to which the UK is not Party). Only a handful of findings have been issued. Most address challenges to procedures to determine the age of alleged unaccompanied minors in immigration cases in Western Europe – an important, but narrow issue. The General Comments of the Committee on the Rights of the Child provide a wider range of interpretative guidance. However, there is a further source of international case law on the rights of the child if we look South.   

The African Charter on the Rights and Welfare of the Child (the Charter) was modelled on the UNCRC and contains many of the same provisions, as well as the same indeterminate concepts such as ‘best interests’ of the child. Unlike the UNCRC, it also has a built-in right of individual complaint to the African Committee of Experts on the Rights and Welfare of the Child. The Committee has received a slow trickle of complaints since the Charter came into force in 1999, offering an interesting source of case law. The Committee also holds the African Child Rights Case Law Database – a much larger collection of judgments from domestic courts in various African countries on cases related to the rights and welfare of children. Many of these cases address the ‘best interests’ conundrum as well as issues around custody, access to education, juvenile justice, sexual abuse etc. In addition, a substantive series of General Comments by the Committee seek to clarify elements of the Charter and its implementation.  

You might think that the issues facing children in many African countries are very different from those faced by children in Scotland. To an extent, they are. But there is a great deal to be learned from the overall approach of the Committee – in putting children’s rights into context, in measuring outcomes and helping to spread best practice, and in stressing the need for budgetary choices to match political commitments. The Committee has also produced reports on specific topics, for example ‘Mapping Children on the Move within Africa’, which raises challenging issues around child migration, exploitation, and the consequences of economic and demographic change, and has relevance for policies towards migrant children in Scotland. 

A recurring theme in the work of the Committee is the inter-relatedness of rights – the links between child health and educational attainment, the overlap between domestic violence and child abuse, the ways in which marginalisation of girls feeds into discrimination against women and vice versa, the multiple impacts of child poverty. Issues that are surely relevant in Scotland too. In their work with governments, non-governmental and grassroots organisations, the Committee’s goal is to help ensure that the Charter is a living, relevant instrument of practical value to individuals and public authorities. In its Policy Memorandum regarding the Bill, the Scottish Government acknowledges the lack of UNCRC case law and refers to other sources of interpretation, including ‘case law from other jurisdictions’. We are not in the habit of looking to the Global South for human rights guidance. But the website of the African Committee of Experts on the Rights and Welfare of the Child is well worth a look.

Kate Mackenzie is a first-year PhD researcher in the School of Modern Languages at the University of St Andrews, with supervision also in the School of Law at the University of Strathclyde. Kate’s PhD research is on Imagining Children’s Rights in Central Africa: Francophone Fiction and State Discourse since 1999. She takes a post-colonial approach to analyse how such texts reflect differing conceptions of childhood. Kate’s research is informed by her previous work in the UK Diplomatic Service, including in the fields of international human rights law and conflict resolution in Central Africa.

^{Feature Photo by Bernard Hermant on Unsplash}