The State - Childrens Rights Reform

The State


Role of the executive in children’s rights legislative reform

The executive plays a crucial role in legislative reform (and the subsequent implementation). It initiates, drafts, reviews and, ultimately, implements and evaluates legislation, as part of its obligation to implement the CRC.

Most of the effort in shaping legislation occurs before a proposal is presented to the legislature.

The executive should draft and propose legislation, applying a CRBA.

The drafting of legislation essentially requires:

  • state-of-the-art children’s rights knowledge;
  • knowledge and skills relevant for drafting the legislation;
  • professional skills relating to the coordination of the (political) process around it;
  • sufficient human and financial resources;
  • time; and
  • political support.

Children’s rights legislative reform should be undertaken in coordination with all relevant government sectors.

  • The CRC Committee believes that effective implementation of the CRC requires, among other things, visible cross-sectoral coordination to recognise and realise children’s rights across government and between different levels of government (CRC GC 5, para. 27).
  • Although States may have different levels of government: national, regional and local governments and cities (see Local and regional governance section, below), States Parties’ obligations under international human rights law extend to all levels and branches (OHCHR, Cities, local and regional governments and human rights).
  • Therefore, States Parties will need to undertake cross-sectoral coordination when they carry out children’s rights legislative reform.
  • According to the CRC Committee, it may not be practicable to bring responsibility for all children’s rights matters into a single governmental department; this may even marginalise children’s rights.
  • A special unit, if given high-level authority, or a dedicated minister or ministerial coordinator acting on behalf of the national government, cabinet or president can contribute to the overall purpose of making children more visible in government and ensuring respect for children’s rights across the government and at all its levels (CRC GC 5, para. 39), including in the legislative reform process.
  • In light of the growing attention being paid to children’s rights mainstreaming, each governmental actor should be aware of its role in realising children’s rights in a comprehensive manner. This also applies to legislative reform, which should aim for the implementation and incorporation of children’s rights to the fullest extent (see also section WHY; see also UN Secretary General 2023; Eurochild 2014 and Council of Europe).

In general, the executive also sets the budget for the legislative reform process and the implementation of legislation (once legislation is adopted).

  • Legislative reform and the subsequent implementation of legislation through policies and institutional development require an adequate and often substantial allocation of funds from governments.
    • Prioritising children’s rights in budgets, at the national and subnational levels, as required by the CRC, contributes to the realisation of these rights and to long-lasting positive impacts on future economic growth, sustainable and inclusive development, and social cohesion (CRC GC 19, para. 12).
    • States should take all children’s rights into consideration in all stages of the budgeting processes and administrative systems at the national and subnational levels (CRC GC 19, para. 13).
    • Legislation, policies and programmes cannot be implemented without the mobilisation of sufficient financial resources, allocated and spent in an accountable, effective, efficient, equitable, participatory, transparent and sustainable manner (CRC GC 19, para. 11).

In many legal systems, the executive presents the proposed legislation to the legislative power (e.g. parliament), which has the power to approve, amend or reject the proposal.

Once the legislature approves the proposed legislation, the executive enacts and/or promulgates the legislation.

  • How this function in practice depends on the relationship between the legislative and executive function within the existing system of government.
    • In democracies, three models can be distinguished: parliamentary systems, presidential systems and hybrid systems (National Democratic Institute for International Affairs 2000).
    • In parliamentary systems, government promulgation may follow automatically after legislative passage.
    • In presidential systems, the executive (i.e., the president) may have the power to veto legislation.
    • In hybrid systems, legislation approved by parliament may need to be signed off by the cabinet, president or crown.

For the implementation of legislation, the executive can create special agencies to address children’s rights or specific issues linked with children’s rights. The creation of a dedicated agency is also a way of supporting coordination among all actors involved in the design or implementation of legislation.

E.g.: A specific government body, the Child Development Agency, was created with the Child Care and Protection Act in Jamaica. The Child Development Agency is charged with implementing the Child Care and Protection Act. The Act also gives clear responsibilities to the Children's Advocate, whose office was established to act in legal matters on behalf of children. Further, a Central Registry was created by the Act to maintain records of all reported cases of child abuse

Source:(UNICEF 2008)

Naturally, executive/government agencies and organisations or professionals mandated by the government to execute governmental roles and responsibilities play a critical role in the implementation of children’s rights legislation.


Role of parliaments

The legislature plays a critical role in approving and subsequently adopting children’s rights legislation that is initiated by the executive. The legislature may also initiate children’s rights legislation.

In many systems around the world, the parliament essentially embodies the legislative power.

  • The CRC Committee underscores the importance of the role of parliaments at the national and subnational levels in the promotion and protection of children’s rights under the CRC and its OPs (CRC Committee, IPU, 2022, para. 1).
  • The CRC Committee and the Inter-Parliamentary Union (IPU) highlight that parliaments have an important role in (CRC Committee, IPU, 2022, para. 2):
    • Promoting a Children’s Rights Based Approach in legislative processes;
    • Drawing on their constitutional powers to engage in the implementation of the CRC;
    • Promoting the participation of children in decisions affecting them (see IPU, UNICEF, 2011);
    • Raising awareness of the general public, including children, CSOs and other stakeholders on the role of parliaments in promoting and protecting children’s rights.
  • Parliaments typically ratify international instruments like the CRC and its three OPs (a process which includes decisions on declarations and reservations) (CRC Committee, IPU 2022, para. 10), which serves as an important starting point for the implementation and incorporation of children’s rights, through legislative reform among other means.

Parliaments should use their powers to ensure the full realisation of children’s rights in legislation and to address legislative gaps. During the CRIA, parliaments should be proactive in identifying the legislative provisions needed to give effect to international obligations.

In this capacity, parliaments have role to play in:

  • Contributing to the drafting of legislation and amendments of legislative proposals;
  • Rejecting draft legislation, even in States where legislative initiative lies with the executive;
  • Adopting legislation; and
  • Scrutinising the implementation, monitoring and evaluation as part of parliaments’ responsibility to oversee the work of the government, including budget allocation (see also budgetary power below).

For more information see: CRIN’s Guide for Parliamentarians

Different aspects of parliamentary involvement in children’s rights legislative reform

Special parliamentary committees can be established to provide consultation on children’s rights legislative reform (e.g. a committee dealing with children’s rights, committee on justice, etc.). States Parties can also create parliamentary committees that are primarily or exclusively dedicated to children’s rights, coordinate their mainstreaming throughout the work of the legislative body and support children’s parliaments.

E.g. In the UK, the House of Lords has a Committee on the Children and Families Act 2014, that was active in the review of the Children and Families Act 2014. In December 2022, it published a report on the implementation of the Act which found that “insufficient data and inadequate implementation and monitoring of the Children and Families Act 2014 has made what should have been a landmark piece of legislation a largely missed opportunity to improve the lives of children and young people”.

Parliament should develop tools and mechanisms to facilitate the participation of children in parliamentary work, including in the children’s rights legislative reform process. They should also engage with constituents, media and social media to promote children’s rights and to raise awareness of children and the general public (CRC Committee, IPU 2022, para. 10).

Parliaments also possess budgetary power, which is often an element of parliaments’ legislative powers. Parliaments should adopt a children’s rights based approach in the budget, and the sufficient, fair and rational distribution of budget resources for children, also in relation to legislative reform (CRC Committee, IPU 2022, paras. 7 and 10). Parliaments should ensure that resources are made available for the prevention of legislative violations, and there is protection and redress when they do occur.

Parliaments can assist in drawing up national plans of action and fulfilling national reporting obligations (IPU UNESCO 2003). This could be part of parliaments’ interaction with the executive branch to coordinate national efforts to respect, protect and fulfil children’s rights (CRC Committee, IPU 2022, para. 10).

Parliaments should exercise oversight of the implementation of legislation and policies by the executive. Oversight of the executive includes visiting facilities where children are held and supporting the overall administration of justice with respect to the judiciary. By monitoring the executive branch at the national and local levels, parliaments can help to increase transparency and accountability and to identify challenges that should be addressed through new legislation or policies (CRC Committee, IPU 2022, para. 6)

Parliaments can also push for and legislate the establishment of a National Human Rights Institution (NHRI) and an Independent Children Rights Institution (ICRI) to promote debate on children’s rights and participate in the monitoring of the implementation of children’s rights (IPU UNESCO 2003).


Role of the judiciary in children’s rights legislative reform

The judiciary (courts and/or judges) does not have legislative powers, but it can have a role in law making (in particular in common law systems). Courts and judges do not form part of the executive either.

The primary responsibility of the judiciary is to oversee and scrutinise the application, implementation and enforcement of legislation and to interpret domestic legislation, potentially also in light of the domestic constitution and/or international law (depending on the legal system)

In some jurisdictions, courts can rule that legislation is in violation of children’s rights, and that the State needs to take action to comply with children’s rights. Courts can thus prompt the executive and the legislative in reforming legislation to bring it in line with children’s rights.

E.g.: In Baby ‘A’ (Suing through the Mother E A) & another v. Attorney General & 6 others [2014], the High Court of Kenya at Nairobi heard a case about the rights of intersex children. It found that there was a need for guidelines, rules and regulation for surgery on intersex people and a need for the government to collect data on intersex people. Among other things, it directed the government to submit to parliament an appropriate legal framework governing issues relating to intersex persons, including a statute regulating the designation of intersex persons as a sex category and guidelines and regulations for surgery for intersex persons.

The judiciary thus has an important role in ensuring that domestic legislation and its application is compliant with children’s rights as embodied in the CRC.

E.g.: In Mudzuru & Another v Ministry of Justice, Legal & Parliamentary Affairs (N.O.) & Others, the Constitutional Court of Zimbabwe heard a case about the minimum age of marriage. The Court declared that Section 78(1) of the Constitution of Zimbabwe sets the minimum age of marriage at 18 years. It also found that any law allowing for any person under the age of 18 to marry is unconstitutional and is void, and that no person can marry under the age of 18.

Judges (and legal support staff) need to be fully aware of States’ obligations under the CRC and related standards. This includes knowledge of the recommendations of the CRC Committee (General Comments, among others). Building the capacity of judges is an important aspect of the implementation of legislation.

  • This is equally important for legal support staff working in courts and lawyers playing a role in court cases.

As one of the key stakeholders, the judiciary needs to be consulted when legislation is being drafted.

Child rights strategic litigation – role of lawyers or others acting for or on behalf of children

Child rights strategic litigation can contribute to the development of children’s rights legislation.

  • Courts play a primary role in the interpretation, enforcement and implementation of these provisions.
  • Litigation is a tool through which lawyers or others acting for or on behalf of children can challenge legislation and the interpretation, enforcement and implementation of legislation in light of children’s rights.
    • Public and private organisations and individuals can pursue litigation in favour of children’s rights.
  • Invoking children’s rights before courts encourages greater legal reliance on and reference to children’s rights values throughout domestic and international legal systems (Kilkelly 2011).
    • This requires that lawyers and others acting for or on behalf of children are fully aware of States’ obligations under the CRC and related standards. This includes knowledge of the recommendations of the CRC Committee (General Comments, among others).
  • Litigation can be a prompt for children’s rights legislative reform.
    • In fact, strategic litigation (or public interest litigation) can raise awareness of the need for legislative reform among the public and within the government.
    • Strategic litigation and social movements for children’s rights can mutually reinforce each other and lead to innovative change.
      • This was noticeable in, for example, Brazil and South Africa concerning the right to equal access to quality education (Open Society Justice Initiative 2017).
      • A decision from a court may also require the State to reform its legislation to bring it in line with children’s rights standards.
      • In common law countries in particular, it can result in immediate changes in law in favour of children’s rights

E.g.: The Spanish Supreme Court heard a case brought by a person born in Mali and who immigrated alone to Spain. Upon entering Spanish territory, the applicant declared that they were of legal age so that they could reach Madrid more easily. After that, when applying for legal guardianship, they provided official documentation stating that they were a minor. The Prosecutor’s Office for Minors refused to declare the applicant a minor because of the alleged inconsistency regarding their real age and their refusal to submit to medical examinations to determine their age. The Office subsequently denied child protection services and the right to legal guardianship. The administrative decisions were upheld by the courts in first instance and on appeal. However, in its decision no. 307/2020, the Supreme Court reversed the decision. It recalled the importance of protecting unaccompanied minors and held that domestic provisions must be construed in accordance with the best interests of the child and that foreigners whose age cannot be determined with certainty must be treated as minors until their age is established. It added that children’s best interests require judges to proceed on a case-by-case basis and to attempt to balance the danger of sending non-minors to minor centres and the risk of leaving actual minors without protection. The case is part of a strategy developed in part by Fundación Raíces to aid immigrant minors in similar situations (FAIR project). They are advocating for the Spanish Government to amend legislation to reflect the Supreme Court’s ruling and for a reform of the system so that requests for legal guardianship be directed to judicial organs. (ACRSL case note).

For more information on child rights strategic litigation see Advancing Child Rights Strategic Litigation (2022). See also Couzens (2019) and Open Society Justice Initiative 2017.