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Children’s constitutional rights

I. Children’s constitutional rights

A. The Convention on the Rights of the Child

The Convention on the Rights of the Child (“the Convention) was adopted by the United Nations (Resolution 44/25) in 1989. The Convention recognizes and protects the fundamental freedoms and inherent rights of children. It was extended to Hong Kong in 1994. For details on the background of the Convention, please see Appendix I .

B. Who is “a child”?

Under Article 1 of the Convention,  a child is defined as a ” human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.”

In Hong Kong, the age of children may vary under different legislations.

C. Some important rights conferred to children under the Convention

Children’s rights set out in the Convention include:

    1. the state “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies” to act in the best interests of the child as a primary consideration. (Article 3(1))
    2. the right to life, survival, and development  (Article 6);
    3. the right to develop through education and the right to participation, which embodies freedom of expression and freedom of thought, conscience and religion;
    4. the right of the child to the enjoyment of the highest attainable standard of health (Article 24);
    5. the right to education. States Parties are required to make primary education compulsory and available free to all. States Parties are required to encourage the development of different forms of secondary education, including general and vocational education, to make them available and accessible to every child, and to take appropriate measures such as the introduction of free education and offering financial assistance to those in need (Articles 28 and 29);
    6. the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.”(Article 32) This entails taking legislative, administrative, social and educational measures to ensure implementation of Article 32. In particular States Parties shall “ a) Provide for a minimum age or minimum ages for admission to employment;  b) Provide for appropriate regulation of the hours and conditions of employment; and c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.”
    7. the right to protection  from all forms of sexual exploitation and sexual abuse. States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: “a) The inducement or coercion of a child to engage in any unlawful sexual activity; b)The exploitative use of children in prostitution or other unlawful sexual practices; c) The exploitative use of children in pornographic performances and materials.” (Article 34)
    8. the rights of children facing allegations of criminal offences. In addition to observing the basic principles of presumption of innocence and the right of silence, States Parties undertake to institute laws, procedures, authorities and institutions specifically applicable to children charged with criminal offences. This includes a minimum age for criminal liability. Measures such as care guidance and supervision orders, counselling, probation, foster care, education and vocational training programmes should be available as alternatives to institutionalising children. (Article 40)

D. Enforcing the Convention

States Parties have a moral obligation to adhere to, and implement, the rights set out in the Convention. This is emphasised by the constant use of such terminology as “undertake”, “shall ensure ” and “ recognise ”.  By acceding (agreeing)to the Convention, States Parties are obligated to make sure that their legislation, policies and practices conform to the standards set out in the Convention and make those standards a reality for all children within their society.

As there is no direct enforcement machinery in the Convention, education and a culture of voluntary compliance based on knowledge and understanding is fundamental to the effectiveness of the Convention.

In Article 17 of the Convention States Parties “ recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.” Article 17 should be read together with Article 13. Article 13 recognises the child’s right to freedom of expression, which includes the right to receive information. In particular, States Parties are encouraged to use the mass media to spread information about the rights contained in the Convention. Article 17 emphasises the importance of books written for children can play in bringing about a culture of respect for children’s rights.

The progress made by States Parties on their implementation of the Convention is monitored by a Committee on the Rights of the Child (“CRC”) established under Article 44 of the Convention. States Parties undertake to report to the CRC within two years of the Convention coming into force in the State Party concerned, and subsequently every five years. The CRC, which sits in Geneva and usually meets once a year, is an internationally elected body of 18 experts of high moral standing and recognised competence in the fields covered by the Convention. Election to the Committee is by secret ballot from a list of persons nominated by States Parties. Members are elected for four years and are eligible for re-nomination.

The CRC reviews and comments upon the reports submitted to it by States Parties.  States Parties are encouraged to implement measures, and to create and develop the necessary institutions, to meet the aims and objectives of the Convention.  Under Article 45 of the Convention, the CRC can ask for advice on the implementation of the Convention from other specialised United Nations organs or organisations such as the United Nations Children’s Fund (“UNICEF”), a United Nations organisation dedicated exclusively to protecting and improving the rights of children worldwide. This emphasises the universal approach of the Convention to enhancing and protecting children’s rights.

E. How Hong Kong enforces the Convention

The Convention has not been incorporated directly into the law of Hong Kong by means of an Ordinance nor is there a Children’s Commissioner or Government official with singular responsibility for enhancing and protecting the rights of children. As the Convention has not been incorporated into the law of Hong Kong it is not possible to apply to a court to force the government to comply with the obligations contained in the Convention.

There are, however, a number of Ordinances in place intended to enhance the rights of children and protect them from abuse. Although there is no discrete definition of child abuse under Hong Kong law, child abuse is being defined as any act of commission or omission that endangers or impairs the physical / psychological health and development of an individual under the age of 18 by the Social Welfare Department. (Child abuse is a general term used to describe various acts and degrees of abuse of children. It includes physical, sexual, psychological forms of abuses, and neglect.

Abuse amounting to criminal conduct is a particular matter for the police, though non-government agencies, such as the Hong Kong Society for the Protection of Children and schools, have an important role to play in detecting and protecting children from abuse. The Director of Social Welfare (“The Director”) has an integral role in the protection of children. Where necessary, and in the best interests of the child, the Director can intervene to remove a child from his/her family if that child is being abused or neglected, or their development is being avoidably prevented by the family.

The Hong Kong Police Force has set up the Child Protection Policy Unit (“CPPU”). The CCPU aims to combat domestic violence, child abuse, sexual violence, elder abuse and child pornography. It has close links to other government departments and non-government organisations. The CCPU is responsible for police force policies on handling the aforesaid matters. Its functions include monitoring local and overseas trends in child abuse, sexual violence, juvenile crime and child pornography. In particular, it can assist in the making of new laws aimed at combating these activities. One of the important activities performed by the CCPU is to work with the Social Welfare Department (“SWD”) on child protection investigation techniques. Another important activity is to organise training on aspects of child abuse, sexual violence and juvenile crime with other government departments and non-government organisations.

There are a number of Ordinances particularly relevant to the protection of children in Hong Kong. These include:

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