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Litigating the Rights of the Child: The Un Convention on the Rights of the Child in Domestic and International Jurisprudence

Edited by: Ton Liefaard, Jaap E. Doek

ISBN13: 9789401794442
Published: October 2014
Publisher: Springer-Verlag
Country of Publication: The Netherlands
Format: Hardback
Price: £90.00

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This book examines the impact of the UN Convention on the Rights of the Child (CRC) on national and international jurisprudence, since its adoption in 1989. It offers state of the art knowledge on the functions, challenges and limitations of the CRC in domestic, regional and international children's rights litigation.

Litigating the Rights of the Child provides insight in the role of the CRC in domestic jurisprudence in ten countries from different parts of the world, with civil law, common law and Islamic law systems. In addition, it offers analyses of the jurisprudence of regional courts, in Europe and the Americas, and of human rights treaty bodies, including the Human Rights Committee, Committee on the Elimination of Discrimination against Women and the African Committee of Experts on the Rights and Welfare of the Child.

This book presents a global and comparative picture on the use of the CRC in litigation and identifies emerging trends. This book serves as an important source of reference and inspiration for academics, students, legal professionals, including judges and lawyers, and (inter)national organisations working in the area of children's rights.

Human Rights and Civil Liberties
List of Acronyms
About the Authors
Chapter 1: Litigating the Rights of the Child: Taking Stock after 25 Years of the CRC Error! Bookmark not defined
1. Children's Rights in Domestic and International Case Law
2. Functions, Challenges and Limitations of the CRC in Litigation
3. Outline of the Book
4. Concluding Observations
4.1 The CRC in Litigation at National Level
4.2 The CRC in Litigation at Regional and International Level
5. Litigating the Rights of the Child: How to Proceed from Here?
Chapter 2: South Africa
1. Introduction to the South African Constitutional and Legal System
2. Children's Rights in the South African Bill of Rights
3. The Influence of International Law and Foreign Law
4. Children and Children's Rights Organisation as Litigators
5. Cases Relying on the CRC
5.1 Best Interests
5.2 Family Care, Parental Care and Appropriate Alternative Care
5.3 Children's Socioeconomic Rights
5.3.1 Children Living with their Parents
5.3.2 Children not Living with their Parents
5.3.3 Education
5.4 Children in the Criminal Justice System
5.4.1 Child Offenders
5.4.2 Child Victims
6. Using the CRC and ACRWC Conjunctively
Chapter 3: India
1. Introduction
2. Incorporation of the CRC in Domestic Legislation and Policies
3. Use of the CRC in Court Proceedings
.1 Child Labour
3.2 Juvenile Justice, Care and Protection
3.2.1 Children in Need of Care and Protection
3.2.2 Children in Conflict with the Law
3.3 The Child as Witness in Court
3.4 The Right of the Child to Protection from Sexual Abuse
3.5 The Right of the Child to Privacy and the Role of the Press
3.6 Maintenance, Custody and Adoption
3.6.1 Maintenance
3.6.2 Custody
3.6.3 Adoption
3.7 Recommendations of the National Human Rights Commission
3.7.1 The Death Penalty
3.7.2 Compensation for Juvenile Victims of Torture
3.8 The CRC and the National Legal Services Authority
4. Conclusion
Chapter 4: England and Wales
1. Status of the CRC in England and Wales
2. The Role of Judicial Precedent
3. Rule of Construction
4. Family Law: Impact of the CRC on the Application of the 'Welfare Principle'
5. Administrative Law: Impact of the CRC on Criteria for Administrative Decisions
5.1 Immigration
5.2 Planning
6. Conclusion
Chapter 5: United States
1. Juvenile Justice Developments, the CRC and the USA
2. The Roper v. Simmons Judgment
3. Life Sentence without Parole
4. Some Concluding Remarks
Chapter 6: The Netherlands
1. Introduction
2. Direct or No Direct Effect? A Constitutional Framework
3. Dutch Court System
4. Children's Access to Justice
5. Implementation of the CRC in Dutch Case Law
5.1 The CRC in the First Decade after Ratification
5.2 The CRC in the Previous Decade
6. The Impact of the CRC in Different Fields of Law
6.1 Family Law
6.2 Immigration Law
6.3 Social Security
6.4 Juvenile Justice
7. Limitations, Challenges and Caveats
8. Conclusion
Chapter 7: Belgium
1. Introduction to the Belgian Legal System
1.1 The Question of Direct Effect
1.2 Children's Rights in the Belgian Constitution
2. Access to Justice
3. An Overview of Case Law on the CRC
3.1 Direct Effect
3.2 Areas of Law
3.2.1 Migration
3.2.2 Affiliation
3.2.3 Juvenile Justice
3.2.4 Social Security
4. Notable Cases
5. Conclusion
Chapter 8: France
1. Introduction
2. Introduction to the French Legal System
3. Children's Rights and the CRC in France
4. The Court of Cassation
5. The Council of State
6. The Constitutional Council
7. Accouchement sous X: A Test for the CRC?
8. Conclusion
Chapter 9: Serbia
1. Introduction
2. The Serbian Legal System
3. Rights of the Child in Serbia
3.1 State of the Rights of the Child in Serbia
3.2 Legal Framework
3.3 The Child's Legal Protection and Access to Justice
4. Selected Case Law
4.1 Commissioner for Protection of Equality
4.1.1 Case 1: Discrimination against children and youth with disability in provision of public services (29 P no.
4.1.2 Case 2: Discrimination against minority children and denial of access to education (11 P no.
4.2. The Supreme Court of Cassation
4.2.1 Case 1:The rights of the child to habitation (Rev 3036/10)
5. Conclusion
Chapter 10: Algeria
1. Introduction
2. The Legal Status of the CRC
2.1 Human Rights Treaties and Conventions
2.2 Interpretative Declarations
2.3 The Publication of the Ratified Convention in the JORADP
3. The Implementation of the CRC
3.1 Implementation of the Rights of the Child by the Judiciary
3.2 Statute of the Child in the Algerian Family Code
3.3 Foster Family in the Algerian Family Code and Case Law
3.4 The Civil Rights of the Child
3.4.1 The Right to an Identity
3.4.2 The Right of the Child to Maintenance
3.4.3 Child Custody
4. Child Neglect and Abuse as a Penal or Criminal Offence
4.1. Crimes related to the Life and Health of the Child
4.2 Protection Measures
4.3 Child Offenders
5. Conclusion
Chapter 11: CRC in litigation under the ICCPR and CEDAW
1. Introduction
2. Selected Jurisprudence of the HRC and CEDAW
2.1 Procedural Issues
2.2 Substantive Issues
2.2.1 The Right of the Child to Proper Registration and Preservation of identity (Art.
2.2.2 The Right of the Child to Maintain Contact with Both Parents (Art.
2.2.3 The Right of the Child to Respect for Family Life
2.2.4 The Right of the Child to Protection (Art.
2.2.5 Deprivation of Liberty (Art.
9 and 24 ICCPR)
3. Third Optional Protocol to the CRC: Potential Jurisprudential Development
4. Enforcement
Chapter 12: CRC in litigation under the ECHR
1. Introduction
2. Brief Introduction to the ECHR
3. Case Law
3.1 Setting the Standard: Article 12 of the CRC
3.2 Custody and Access
3.3 Juvenile Justice
4. Conclusion
Chapter 13: The use of the CRC in litigation under EU law
1. Introduction
2. The Status of the CRC at EU Level
3. Overview of the Court of Justice
4. How the Court of Justice engages with the CRC
5. Alternative Means of Interpreting and Applying the CRC
6. Conclusion
Chapter 14: The CRC as a litigation tool before the Inter-American System of Protection of Human Rights
1. Introduction
2. Individual Petitions before the Inter-American System
3. The Use of the CRC as a Tool of Litigation at the Substantive Level before the Inter-American System: Construing the Scope and Content of the Rights of the Child under the American Convention
3.1 1969 Vienna Convention on the Law of Treaties, Article 31: General rule of Interpretation
3.2 Article 29 of the American Convention on Human Rights
4. The Use of the CRC at the Procedural Level: The Evidentiary Use of the Work of the CRC Committee in the Litigation of Cases before the Inter-American System
5. Reparation in Cases of Violations of Human Rights of Children in the Jurisprudence of the Inter-American Court of Human Rights
6. Concluding Remarks
Chapter 15: Children's Rights Litigation in the African Region: Lessons from the Communications Procedure under the ACRWC
1. Introduction
2. The Communications Procedure under the ACHPR
3. The Communications Procedure under the ACRWC
3.1 Background to the Charter
3.2 The Mandate of the African Committee of Experts
3.3 The Communications Procedure under the Charter
3.4 The Guidelines for the Receipt of Communications
4. The Nubian Children Case
5. The Ugandan People's Defence Force Case
6. Concluding Remarks