Main methods: Developing new legislation or amending existing legislation - Childrens Rights Reform

Main methods: Developing new legislation or amending existing legislation

There are essentially three methods of legislative reform:

  • Method 1: constitutional amendment or incorporation of (elements of) the CRC in the constitution.
  • Method 2: through the incorporation of the CRC, comprehensively, in a single piece of legislation.
  • Method 3: through the gradual and/or sectoral incorporation of various provisions of the CRC over time, using several different laws.

States Parties choose the most appropriate method based on their domestic legal system, constitutional structure, and national context. States Parties may opt to use one method only or a combination of the three, for example as part of an incremental incorporation of the CRC in the domestic legal system.

The methods may require the development of new legislation or the amendment of existing legislation.

For many States Parties, the most efficient way to harmonise domestic legislation with the CRC is to create a single bill or Children's Code. This code contains all relevant children’s rights provisions in a single instrument and governs other pieces of legislation and regulation, policies, and practice.

E.g: In 2003, the CRC was incorporated into Norwegian law by expanding the Human Rights Act of 1999. This is considered a full and direct incorporation of the CRC:

  • In the late 1980s, the Norwegian Government embarked on a process to develop a human rights act.
  • Norway's legal framework operates within a dualist system, where human rights instruments do not automatically become law until they are actively incorporated into domestic legislation. Despite this, these instruments hold significant weight and can be utilized as legal arguments. According to the 'presumption principle,' national provisions are to be interpreted in alignment with international obligations. However, in the event of a conflict, national legislation takes precedence.
  • Initially, the focus of the human rights act development was on incorporating the main human rights conventions, reflecting Norway's dedication to international human rights standards. However, this initial draft omitted the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
  • This approach faced criticism from Parliament, which argued that the CRC and CEDAW were fundamental instruments that needed to be included in domestic legislation, in line with Norway's dualist legal framework. This critique reflected Norway's legal tradition of prioritizing the protection of vulnerable groups, including children and women, within its legal framework.
  • This led to a re-evaluation of the draft act, with a particular focus on the incorporation of the CRC. Various stakeholders, including the Ombudsman for Children, the NGO Coalition for the CRC, and the Norwegian Association of Judges, advocated for full incorporation of the CRC into Norwegian law.
  • Despite differing opinions within the legal community, including opposition from the Norwegian Bar Association and the Attorney General, the Ministry of Justice ultimately proposed full and direct incorporation of the CRC, aligning with Norway's legal tradition of prioritizing the protection of human rights, particularly those of vulnerable groups like children.
  • This incorporation was seen as a natural extension of Norway's legal commitment to human rights, further solidifying the country's position as a global leader in promoting and protecting the rights of all individuals, including its youngest citizens, within the context of its dualist legal system.
Source: Sandberg, (2021) See also: Trude Haugli et al. (2020)

E.g.: In 2024, Scotland has chosen to adopt a method of direct incorporation of the CRC, as suggested by the CRC Committee in its GC No. 5. via the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill.

  • This means that Scotland will integrate the rights and duties outlined in the CRC, along with its first two optional protocols, directly into Scots law through the following measures:
    • Duty of Public Authorities: Public authorities are obligated to refrain from actions that conflict with the requirements of the CRC. Legal remedies are available if they fail to uphold these obligations.
    • Accountability of Public Authorities: Public authorities must publicly disclose their adherence to the CRC's requirements by outlining and reporting on a scheme detailing their compliance efforts.
    • Legislative Compatibility: The government is required to affirm the compatibility of any new legislation with the requirements of the CRC.
    • Interpretation of Legislation: Legislation, both existing and new, should be interpreted in a manner consistent with the CRC's requirements whenever possible. If a compatible interpretation is not feasible, courts have the authority to invalidate incompatible legislation.
    • Amendment of Laws: The government has the authority to amend existing laws through regulations to address any inconsistencies or potential conflicts with the requirements of the CRC.
  • The process of passing the incorporation law in the Scottish Parliament spanned four years. The original Bill was introduced towards the end of 2020 and successfully passed into law in March 2021, albeit not without challenges from the UK Government. The legal complexity stemmed from Scotland's status as a non-sovereign entity, resulting in certain legal domains being reserved for the jurisdiction of the UK Parliament.
  • The initial Bill featured a broad definition of the 'compatibility duty', which mandated that public authorities adhere to the CRCmin the execution of their duties. However, the amended Bill, now enacted as law, has narrowed the scope of this duty in two significant ways:
    • Not all articles of the CRC and its two Optional Protocols were integrated, as some aspects fall under the purview of the UK Government, such as matters pertaining to nationality.
    • The compatibility duty applies exclusively when public authorities operate under the statutes of the Scottish Parliament.
  • Despite these limitations, the Act offers crucial safeguards for children's rights in a legally robust and comprehensible manner for stakeholders. It empowers Scotland to legislate for children's rights and broader human rights, providing a sturdy legal framework for future developments in this area.

In other States, the preference generally is for a law-by-law review and revision, with each piece of legislation amended separately or in small, related clusters.

E.g.: India ratified the CRC in 1992. However, international treaties such as the CRC do not possess inherent legal authority in India; instead, they require distinct national legislation to be implemented. The direct incorporation of the CRC into national law has not yet been achieved and a fragmented approach has been taken to include elements of the CRC within national legislation.

For instance, the Juvenile Justice (Care and Protection of Children) Act of 2015, the Protection of Children from Sexual Offences Act of 2012, and the Commissions for Protection of Child Rights Act of 2005 refer to the CRC in their introductory sections.

Additionally, the principles and standards outlined in the CRC can be identified in subordinate regulations connected to the Juvenile Justice (Care and Protection of Children) Act and various other legal statutes. In addition to these legislative reforms, Indian courts have played an important role in filling gaps in existing legislation offering a higher degree of children’s rights protection

Source: (Ganguli and Kumar 2014).

Sometimes a State starts with sectoral reform (method 3), which then later is followed by a more comprehensive piece of legislation (method 2).

E.g.: Before Georgia adopted its Code on the Rights of the Child in 2019 (see also examples), it had already developed a Juvenile Justice Code in 2015, which was aligned with the CRC.

In some States, legal incorporation is done through a Constitutional amendment (method 1). This may be driven by the wish to recognise children’s rights through the highest legal standard (i.e. the Constitution) or because the legal system has a common law tradition, in which the role of courts within the constitutional framework is key for legal reform and incorporation of the CRC. States may also opt for this first method because the relationship between the domestic law and international law must be established in the Constitution.