Appendix I: United Nations Convention of the Rights of the Child
The Convention on the Rights of the Child (“the Convention) was adopted by a United Nations (Resolution 44/25) on 20 November 1989. The Convention recognizes and protects the fundamental freedoms and inherent rights of children. It was extended to Hong Kong on 7 September 1994 by the United Kingdom Government, which was sovereign, or ruling, at that time. The Convention was ratified by the People’s Republic of China (“PRC”) on 2 March 1992 and re-affirmed on 10 June 1997. Accordingly, the Convention continues to apply to the Hong Kong SAR despite the resumption of sovereignty by the PRC in 1997.
This Convention is in force in most nations and is historically the most widely ratified treaty. It provides an international system and a legal framework for the protection of children. The Convention defines a child as a person below the age of 18, unless the laws of a particular State Party or country recognise an earlier age of majority (that is, threshold of adulthood in law).
The Preamble to the Convention states that “……the United Nations has, in the Universal Declaration of Human Rights, (“the Universal Declaration”) (adopted by General Assembly of the United Nations in December 1948) …… proclaimed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The Preamble also reiterates that, as recognised in the Declaration of the Rights of the Child (“the 1959 Declaration”) (adopted by the United Nations General Assembly on 10th December 1959) the child, “by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection before and after birth.” Paragraph 2 of the 1959 Declaration states that “The child shall enjoy special protection and shall be given opportunities and facilities, by law and by other means, to able him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.”
Paragraph 4 of the Preamble states that the need for such special safeguards had already been stated in the Geneva Declaration of the Rights of the Child of 1924 (“the Geneva Declaration”), and recognized in the Universal Declaration of Human Rights (“the Universal Declaration”) and in the statutes of specialized agencies and international organizations concerned with the welfare of children. Paragraph 5 of the Preamble recognised that “mankind owes to the child the best it has to give.”
The Convention builds upon the Geneva Declaration, the Universal Declaration and the 1959 Declaration. It gathers together and restates rights and benefits previously found in various national and international statutes. Children’s rights are defined and protected. An important aspect of the Convention is the requirement for States Parties to report to and appear before the UN Committee on the Rights of the Child and to justify their actions or inactions in achieving the overall aims of the Convention. The UN’S monitoring and enforcement apparatus includes the Child’s Rights Caucus, the United Nations Human Rights Council and the Committee on the Rights of the Child.
Article 1 of the Convention defines a child as a ” human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.” Children’s rights set out in the Convention include the right to survival, the right to special protection, the right to develop through education and the right to participation. The right to participation includes freedom of expression and freedom of thought, conscience and religion. Under the Convention all children, from the moment of birth, have these fundamental rights.
Article 3(1) of the Convention contains the important provision that “in 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.”
Under Article 4 of the Convention States Parties are required to take all available measures to respect, protect and fulfil children’s rights. This includes reviewing the laws relating to children, assessing social services, legal, health and educational systems and the financial support for those services. States Parties must ensure that the minimum standards set out in the Convention are met: there is a positive duty to help families protect children’s rights. Where necessary this includes amending existing legislation or enacting new legislation. There is a positive obligation to create an environment where children can grow and achieve their full potential. Every child should enjoy freedom of expression, freedom of thought, conscience and religion, association and peaceful assembly.