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Doc. 9188
6 September 2001
Building a 21st century society with and for children: follow-up to the European strategy for children (Recommendation 1286 (1996))
Report
Social, Health and Family Affairs Committee
Rapporteur: Mr Tom Cox, United Kingdom, Socialist Group
Summary
Children's rights have been recognised in a single document, the United Nations Convention on the Rights of the Child. To what extent are its provisions applied in practice, however? An increasing and unacceptable gap between the written principles and the reality has to be noted.
In order to close this gap the Council of Europe member states must adopt a legal instrument containing the various measures necessary for a true implementation of the rights of the child, such as, for example, the establishment at national level of an ombudsman for children, and children's observatory, the publication of annual reports on national policy for children for discussion in parliament, etc.
Moreover the Assembly repeats its proposal concerning the establishment of a European Ombudsman for Children and a European Centre on missing children. Finally, member states should pay particular attention to drawing up the broad lines of a co-ordinated European policy on children's rights and to making children's rights a central focus of their development assistance policy vis-ŕ-vis third countries.
I. Draft recommendation
1. The Assembly salutes the UNICEF initiative to hold a special session of the United Nations General Assembly in September 2001 devoted entirely to defining a world fit for children to live in, a concern it willingly shares and endorses.
2. Since 1989 the rights of children have been recognised and enshrined in a single document, the United Nations Convention on the Rights of the Child, a landmark instrument that has been ratified almost universally, with the notable exception of the United States. To what extent are its provisions applied in practice, however? Much remains to be done to close the gap between principles and practice.
3. Lip service and declarations of intent are not enough: the commitments entered into must be put into practice. What is needed is an action plan, a plan for building a society in 21st-century Europe, with and for children, that is fair and fit to live in. The plan must be a worldwide one consistent with the United Nations Convention - not a list of pious aspirations but a document binding on the members of the Council of Europe.
4. The Assembly therefore invites the Committee of Ministers of the Council of Europe to adopt a legal instrument that is binding on the Organisation's member states and asks them to endorse and honour the following commitments:
i. revise all their domestic legislation and make sure it is compatible with the provisions of the United Nations Convention on the Rights of the Child;
ii. adopt a comprehensive, coherent, long-term national policy on children's rights with a view to fully applying the provisions of the United Nations Convention on the Rights of the Child;
iii. appoint a national Minister of Children's Rights, inter alia to foster an integrated approach to children's rights in every area of government policy;
iv. make sure that children's rights, interests and needs are taken into consideration at the political decision-making level at all times, by making a practice, for example, of drawing up "child impact statements";
v. give a higher profile and greater priority to children in budget presentation and by fair and appropriate allocation of resources;
vi. set up a permanent inter-ministerial body at the national level with authority to deal with all matters relating to children's rights. Its function would be to foster a co-ordinated national policy on children's rights, and it would produce an annual report on such policy for discussion in Parliament;
vii. establish a national Ombudsman for children (or a similar independent institution) to foster children's rights and supervise their application;
viii. set up a national children's observatory to collect and disseminate to interested parties all information and data, including statistical data, on children, their needs and their rights;
ix. foster education in children's rights and related vocational training;
x. encourage maximum participation by children at every level of policy decision-making in every sector;
xi. make special, priority provision for children in their official development aid policies and include respect for children's rights in the requirements for being given technical and financial assistance.
5. The Assembly also invites the Committee of Ministers to assert increasingly the Council of Europe's role, as a champion of human rights, in defending and promoting the rights of the child, and to do so in particular by:
i. instituting, preferably within the Organisation, an independent European Children's Ombudsman with powers of initiative;
ii. giving the Forum for Children and Families powers to deal with all matters relating to children, draw up the broad lines of a co-ordinated European policy on children's rights and put forward a concerted development policy for children's rights outside Europe;
iii. including in the Forum's terms of reference the task of being a European Children's Observatory and preparing an annual report on the situation of children in Europe.
6. The Assembly asks the Committee of Ministers to give further consideration to drafting a European Convention on Children's Rights attuned to European realities, and to including children's rights in the Council of Europe's European Convention on Human Rights and Fundamental Freedoms.
7. The Assembly urges the Committee of Ministers, in co-operation with the European Union, to agree arrangements for setting up a computerised European Data Centre on missing children to centralise information on disappearances and provide the police, families and voluntary organisations, for example, with the necessary information and assistance for their location and recovery.
8. Lastly, the Assembly requests the Committee of Ministers to take appropriate action on this recommendation and forward it to the governments of member states, the European Union institutions, UNICEF and all non-governmental organisations working to protect children's rights.
II. Explanatory memorandum by Mr Tom Cox
1. On behalf of the Social, Health and Family Affairs Committee of the Parliamentary Assembly of the Council of Europe1, I wish to thank UNICEF for its initiative in convening a special United Nations General Assembly in September 2001 devoted entirely to definition of a world fit for children to live in, a concern the committee willingly shares and endorses.
2. This is also an opportunity to salute UNICEF for all the work it does on behalf of children and to express our gratitude to it. The committee could not have completed its task without the precious assistance and expertise UNICEF has given it over the years in a spirit of friendly, fruitful and regular co-operation, in particular with UNICEF's Innocenti Research Centre in Florence, but also with its regional office in Geneva.
3. In addition, when visiting Council of Europe member states in order to draw up reports on this or that specific issue relating to children, the committee and its rapporteurs have always made a point of triggering meetings – consistently instructive – with the local UNICEF representatives, who have invariably been very knowledgeable about the peculiarities of the situations in their respective countries.
4. Since 1989 the rights of children have been recognised and enshrined in a single document, the United Nations Convention on the Rights of the Child, a landmark instrument that has been ratified almost universally, with the notable and regrettable exception of the United States. When the treaty came into force, the Council of Europe's Parliamentary Assembly made a point of taking part, at the European level, in the drive to promote awareness of children's rights and make European standards more demanding and more protective than those adopted at worldwide level.
5. At the time, the Assembly suggested producing a special instrument on children's rights in Europe. It also asked the Organisation's decision-making bodies to consider including children's rights in a protocol to the Council of Europe's European Convention on Human Rights and Fundamental Freedoms, thereby giving children's rights the benefit of the unique protection afforded by that convention. Unfortunately this Parliamentary Assembly initiative was not followed up by the Council of Europe.
6. The Social, Health and Family Affairs Committee then opted for a more pragmatic approach and agreed to work towards effective application in Europe of the rights of the child as enshrined in the United Nations convention.
7. The need to act on, rather than just pay lip service to, the commitments entered into under the United Nations convention became very clear in Europe after 1989: children were the first victims of the collapse of communism and the ensuing fragility of the societies in transition to democracy. Conflicts in the Balkans and particularly in Bosnia provided a tragic illustration of the fate endured by children, in stark contrast with the rights they are entitled to on paper.
8. Back in 1996, at the initiative of its Social Affairs Committee, the Parliamentary Assembly was urging the European member states and the Council of Europe to develop a European strategy for children (Recommendation 1286 (1996)) as a means of closing this gap between theory and practice.
9. For a detailed critical analysis of response to the European strategy for children and the Council of Europe's policy in this field, see the appended report by Professor Eugeen Verhellen, of the Children's Rights Centre, University of Ghent.
10. At the same time, to mark its commitment to children's cause, the Social Affairs Committee set up a Sub-Committee on Children.
11. Since then, and particularly in recent years, the Assembly has taken an unwavering interest in the situation of children, mainly through the work of that sub-committee. Endnotes 2 and 3 list the main reports it has instigated2 and provide an overview of work in progress3. Most of the adopted texts are available on the Council of Europe's web site (http://www.coe.int).
12. I believe - and the expert made the same point in the aforementioned study - that some, if not all, of the proposals contained in the Strategy, which were highly innovative at the time, remain every bit as relevant today and are necessary to guarantee proper application of children's rights. While certain member states have begun applying some of the proposals, as a rule only very few, for the most part tentative, steps have yet been taken to implement the Strategy.
13. We must of course welcome such progress as has been made in the field of children's rights. Attitudes have changed somewhat, as shown by the fact that children are increasingly considered to be individuals with legal rights. Concern for their well-being and what happens to them is growing and becoming more and more of a priority in civil society and even – though to a lesser degree – in decision-making circles and international standard-setting organisations.
14. For example, although not every state has yet appointed a children's Ombudsman, the institution is certainly gaining ground in Europe. And in the European Union the Commission has presented improving the situation of children as virtually a prerequisite for Romania's admission to the Union. The European Parliament too has called for special attention to be given to children in negotiations concerning European Union enlargement.
15. Participation is yet another example: involving children in the life of the community and consulting them on their wishes and expectations is no longer such a rare occurrence, as shown by the increasing number of children's municipal councils and parliaments. Every year in France the National Assembly passes a law based on a proposal made by the children's parliament. At the request of the London city council, the Office of the Children's Rights Commissioner asked children what problems they thought required priority attention in the city and what should be done to remedy them. Violence and security on the streets, child abuse, drugs and racism were uppermost among the concerns they voiced.
16. In the Council of Europe the Forum for Children and Families, which is an attempt at a multi-disciplinary approach to issues concerning children, has six seats which are occupied by children under 18 years of age, appointed by their governments or by NGOs working with children. They take part in the forum's activities on an equal footing with the adult members, who are representatives of the member states and international organisations.
17. There is no denying, however, that the rights of children, or certain of their rights, are by no means a reality everywhere. This applies not only to the developing countries, because of the persistent inequalities between North and South, but also to some European countries which are experiencing difficulties in the transition to a market economy, with the resulting erosion of the social fabric and the spread of poverty. Everywhere children are suffering the adverse effects of globalisation, not to mention abuses of technological advances like the Internet which reduce children to mere chattels.
18. In Europe– even its wealthier countries, partly because of migration – we are increasingly seeing things we liked to think were confined to the developing countries: they include children in virtual slavery, child prostitution, child illiteracy, children "adopted" abroad (in effect, sold to the highest bidder), children forced to live in the street. The gap between rich and poor children is widening.
19. So there is a genuine need for a new strategy on behalf of children, an all-embracing strategy in keeping with the United Nations Convention which will help to build a European society of the 21st century, with and for children, that is fair and fit to live in. I shall therefore follow the expert's recommendations and, with him, propose a new strategy for the 21st century, an action plan which should be more than mere words this time, something binding on all the Council of Europe's member states.
20. With this in mind, I call on the Council of Europe Committee of Ministers to turn this new strategy, this action plan, into a legal instrument binding on the member states, each of which will be required to submit an annual report on the children's rights situation.
21. This does not preclude the possibility that the need will one day be felt for a European convention on children's rights, or for children's rights to be included in the European Convention on Human Rights and Fundamental Freedoms.
22. The Committee of Ministers of the Council of Europe, which has reaffirmed, in its political message issued for the United Nations special session, that "children are entitled to enjoy their human rights and fundamental freedoms as individuals and active legal subjects", must be invited to give further thought to these options.
23. At the summit for children in May 2001 the European Parliament suggested strengthening the co-ordination of the European network of Ombudsmen for children (ENOC). I agree. One of the best ways of doing this is to set up an Ombudsman for children at the European level. I therefore appeal for the proposal from the Chair of the Sub-Committee on Children, Mrs Pozza Tasca, which the Parliamentary Assembly endorsed, to be put forward again and acted on.
24. Amongst the other measures urgently needed in Europe, one in particular must be taken without further ado, namely setting up a computerised European information centre on missing children and efforts to trace them. This is made necessary by the steady increase in illegal immigration flows and trafficking in children in Europe. The Parliamentary Assembly suggested it in its latest report on the question, which focused on the situation in Moldova. The European Union and the Council of Europe could co-operate on this; in so doing they would be heeding the call from the President of the European Parliament, Mrs Fontaine, for close co-ordination of the European effort.
25. I also suggest inviting the Committee of Ministers to call on member states to give priority to children's welfare in their official development aid policies and make the technical and financial assistance they offer conditional on proper regard for children's rights and interests in the receiving states.
26. Finally, I suggest that we disseminate this report to all interested parties, including governments, the European Union institutions, UNICEF, NGOs, etc.
APPENDIX
The importance of a European strategy for children
by Prof. Dr. Eugeen Verhellen, Children's Rights Centre, University of Ghent
I. INTRODUCTION
1. This report is a follow-up to the Parliamentary Assembly's Recommendation 1286 (1996) on a European strategy for children as a contribution to the United Nations General Assembly Special Session on Children (UNGASS), that will take place in New York on 19-21 September 2001.
2. The report is divided into three main sections. The first chapter puts the Council of Europe's activities on children into the wider context of global and European childhood policy developments. The second chapter focuses more specifically on Recommendation 1286 (1996) on a European strategy for children and its implementation. The final chapter contains some draft recommendations and proposals to the Council of Europe and to its member States.
3. Almost no systematically collected empirical data regarding the follow-up to Council of Europe texts relating to children are available. This lack of information about children is not very exceptional and is not restricted to the Council of Europe. Indeed worldwide it remains a major concern that there are important data gaps which pose a serious challenge for monitoring the follow-up to recommendations and for assessing progress towards the goals set forth in those instruments. Therefore the present report is based mainly on the relevant documents adopted by the competent Council of Europe bodies, subjected to critical analysis.
4. The report gives a rapid overview of the Council of Europe's childhood policy during the last decade and is designed to provide a set of proposals supportive of, and compatible with, those already outlined in the Unicef outcome document prepared for UNGASS "A world fit for children".
II. COUNCIL OF EUROPE ACTIVITIES ON CHILDREN IN A GLOBAL AND EUROPEAN CONTEXT
1. The global level
5. European childhood policy cannot be discussed independently of changes in our perception of the child at the global level. For a long time children were seen as "not-yet" human beings, considered mere objects as reflected in national and international law. Over the last decades, however, more and more criticism has been levelled at this image of the child. Gradually, but with increasing insistence, authoritative voices have emphasised that children are in fact first and foremost human beings, and that therefore our relationship with them has to be based on respect of them as human beings. This means that children are to be considered as subjects, as fully entitled to enjoy human rights on their own account. Thus the present situation has become confused and, at times, even paradoxical, since our view of children still tends to be based on the dominant "child-as-object" image, while, simultaneously, the new perception is gaining powerful influence.
6. By adopting, without a single dissenting vote, the Convention on the Rights of the Child (CRC) on 20 November 1989, the United Nations member States made the shift in perception of the child very clear. Within less than ten years the CRC has already been ratified by 191 countries. This means there is almost universal ratification, which is fairly unique in the history of human rights instruments.
7. It is well known that the CRC constitutes the greatest achievement ever in the field of the legal protection of children. It is a comprehensive instrument. This means that it covers in one instrument both the first and second generation of human rights. In addition, it is of great importance that, in the spirit of the Convention, none of the rights included is greater or lesser than any other and that they all relate to each other. This means that the indivisibility of civil, political, social, cultural and economic rights is emphasised and will be more and more so in the future.
8. For the first time in history, the Convention recognises the citizenship of the child: in effect, Article 12 up to and including Article 16 envisage a series of civil rights for the child (freedom of expression, information, thought, conscience, religion, and association). In particular, Article 12, which recognizes the child's right to freedom of expression, and hence, to participate in matters which interest him/her, represents a real revolution in our treatment of the child.
9. The Convention can also be interpreted according to the so-called "three P's":
- Protection – the right to be protected from certain forms of behaviour (abandonment, child abuse, exploitation, …);
- Provision – the right to access to certain benefits and services (education, health care, social security, etc.);
- Participation – the right to carry out specific activities and to freedom of expression and to be involved in decision making.
10. It is manifest that this Convention is not the end of the road. The rights of children should not only be protected re-actively (defensively). The CRC is above all pro-active (offensive) as in different articles it indicates the State's duty to promote the rights of the child. It implies a fundamental change of attitude with respect to children. "More respect for children" has become a legally binding obligation as a result of this Convention. Therefore it is also a very challenging starting point.
11. It is clear that the monitoring mechanisms (Articles 42-45 inclusive) constitute the Convention's Achilles' heel. Article 44 describes in detail the obligation to periodically present country reports. Article 44.6 obliges the individual States to publish and circulate their reports throughout their own country. This is very important. In practice, this obligation is the result of Article 42 which requires States parties to publicise "the contents of the Convention, through effective and appropriate channels, among both adults and children". We can see, therefore, that the Convention not only seeks to discover if children's rights are violated or not (re-actively). This particular article also affirms that greater awareness of children's rights, achieved through public debate, not only constitutes the best protection against possible violation of these rights but also ensures greater respect for children (pro-actively). Children's (human) rights education, in the broadest sense, is at issue here.
12. By its comprehensiveness, its universality and its legally binding character, the CRC is challenging the world with a brand new and unique geopolitical social contract.
13. Like all UN-treaties, the CRC contains universal minimum standards. States parties and regional intergovernmental organisations (e.g. Council of Europe) or supra-national bodies (e.g. European Union) can always raise those minimum standards. In such cases, and in line with CRC Article 41, it is the higher standard set in national law or other applicable international law that applies.
14. The United Nations General Assembly itself has already complemented the minimum norms of the CRC by adopting two optional protocols on 25 May 2000. The one relates to the involvement of children in armed conflicts, the other to the sale of children, child prostitution and child pornography.
15. Also the adoption of ILO Convention No. 182 on the abolition of the worst forms of child labour, which already entered into force in November 2000, illustrates the firm will to complement and raise minimum standards. Another example is The Hague Convention on protection of children and co-operation in respect of intercountry adoption (1993).
16. However, the phase of standard-setting is not the end of the matter. The phases of implementation and monitoring have only just started. For now, the CRC can be seen as a baby just leaving maternity care.
17. The entry into force of the CRC (September 1990) coincided with the World Summit for Children (WSC). 71 Heads of State and Government and other leaders signed the World Declaration on the survival, protection and development of children and adopted a Plan of action to achieve a set of 27 precise, time-bound goals.
18. Despite the coincidence of the two events, they differed somewhat in approach. Although the WSC Plan of action has helped to raise the profile of children on the world's agenda, there was not that much attention paid to the significance of the CRC. Indeed the WSC approach was still rather conventionally oriented towards child protection, ignoring the other two p's (provision, participation), whilst the CRC is more comprehensive and based on a human rights approach which holds governments accountable.
19. Even today the drafting of the outcome document A World Fit for Children for the United Nations General Assembly Special Session on Children (UNGASS), shows that the tension between these two approaches still holds. Moreover, the laborious drafting process has shown that even the WSC goals cannot be achieved without the universal realisation of all the rights contained in the CRC. This universal discussion illustrates very clearly the need for greater convergence and more coherent childhood policies.
2. The European level
20. The above broad picture of the main developments regarding children at universal level is of paramount importance in order to understand and assess the developments that are taking place at European level.
21. The word "Europe" embraces a diversity of political realities. This report limits itself to the best known and most important of these: the Council of Europe and the European Union (EU). Fortuitously 1989 marks both the breakdown of the "iron curtain" and the adoption of the UN Convention on the Rights of the Child. The first part of this chapter deals with the period before, the second with the period after 1989.
2.1. Before 1989
2.1.1 The Council of Europe
22. The Council's main treaties, i.e. the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (1950) and the European Social Charter (1961) do not really contain any specific provisions relating to the rights of children. One does, however, find direct and indirect references to them in some articles.
23. The ECHR directly mentions the child with respect to illegal detention (Article 5) and special protection in reporting of trials (Article 6.1). Indirect references are found above all in Article 8.1 on the right to respect for private life and family life, and Article 8.2 referring to non-interference in private life. Article 2 of the first additional protocol, on the right to education, also refers to children of course.
24. Through the ECHR, and specifically the jurisprudence of the former Commission and the Court of Human Rights, children's legal position in Europe has strengthened and has evolved towards recognition of their enhanced legal competence. Indeed, according to Article 34 of the ECHR, children can lodge a complaint with the Court. Already in 1974, through an admissibility-decision on the X and Y-case vs. the Netherlands, it was made very clear that a child can act independently in a situation where there are opposing conflicts between the child and his/her legal representative (parental authority). Especially since the eighties, the case law relating to children has grown considerably.
25. The second main treaty, the European Social Charter, refers directly to the right to protection of children (Article 7), and the right of mothers and children to social and economic protection (Article 17). Indirectly it refers to children's rights in Article 16 (the right of the family to social, legal and economic protection) and in Article 19.6 about family reunification for foreign workers. Compliance with the Charter is monitored by the European Committee of Social Rights which reviews periodic country reports by the member States. It is a pity that from the viewpoint of children's rights there has been no systematic analysis of these national reports.
26. Besides the fundamental human rights instruments, and to fill the gap, a series of specific sectoral conventions relating to children were adopted: the European Convention on adoption of children (1967), the European Convention on the legal status of children born out of wedlock (1975), the European Convention on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children (1980).
27. Furthermore both at the level of the Parliamentary Assembly and the Committee of Ministers an impressive set of Resolutions and Recommendations relating to children were adopted. They cover specific sectors such as health, social protection, family policies, migration, legal affairs, education, mass media, etc.
28. Most of these texts reflect a more protection-oriented approach and a somewhat fragmented policy. However a start towards a more coherent and comprehensive instrument was made when it was recognised that there was a need for a European Convention on Children's Rights.
29. While at the UN the International Year of the Child in 1979 was the start of the drafting process of the Convention on the Rights of the Child, a similar initiative was taken at the Council of Europe. On 4 October 1979 the Parliamentary Assembly adopted Recommendation 874 on a European Charter on the Rights of the Child. It was the first attempt to bring together and coordinate the fragmented sectoral policies in one single document. A major change in perception of the child was introduced in the Recommendation's general principles, which stated that "children must no longer be considered as parents' property, but must be recognised as individuals with their own rights and needs".
30. However, the Assembly's proposal was not taken up by the Committee of Ministers. In 1981 the initiative was unsuccessfully revived by a number of NGOs. In 1987 a report for internal use [DH-ED (87) (22)], entitled The Council of Europe and child welfare, the need for a European Convention on children's rights circulated. In 1989 it was officially published (Human Rights Files, No.10).
31. In conclusion for this period it can be said that a remarkable number of Council of Europe legal instruments illustrated considerable interest in childhood policy. In spite of some efforts, however, there was no attempt to work out a coherent co-ordinated policy. The documents illustrate a piecemeal, predominantly child protection-based approach, although the growing jurisprudence of the former Commission and the Court of Human Rights already shows a potential move to recognise children's entitlement to human rights.
2.1.2 European Union
32. At the E.U.-level no specific direct attention was paid to children during this period. Indeed, the basic legal instruments of the European Community (Treaty of Rome, 1957 and the Single Act, 1986) provide no legal basis for a coherent policy relating to children. Nor is there any legally binding subsidiary legislation (regulations, directives or resolutions) directly referring to children. Only implicit policies can be derived, for example the possible rights of children resulting from the rights of their parents as "workers". However, as in other areas of the EU's social policy, policy relating to children is, in the first instance, the responsibility of the individual member States (subsidiarity principle).
2.2. After 1989
33. As has been said, 1989 marks both the breakdown of the "iron curtain" and the adoption of the UN Convention on the Rights of the Child. Since then there have been dramatic changes in approach to the cause of children.
2.2.1 The Council of Europe
34. The Council of Europe came to realise that it had dealt a long time with children's issues piecemeal, and needed to pull the strands together in a more coherent manner. After 1989 the member States ratified the UN Convention on the Rights of the Child. By now most of Europe is legally bound to implement the Convention. This makes it the most powerful and comprehensive children's rights instrument in Europe.
35. Regarding the main treaties, i.e. the European Convention on Human Rights and the European Social Charter, the trends described above (paras 24 ff.) continued after 1989.
36. The case law of the European Convention on Human Rights showed even greater recognition of children as entitled to enjoy human rights and of their legal capacity. Bearing in mind that the rulings of the Court have a binding effect upon all States Parties, this development is of paramount importance. Illustrative of this trend are the different cases against the United Kingdom resulting in the banning of corporal punishment of children.
37. The European Social Charter was revised in 1996. This revised Charter contains even more provisions relating to children, resulting in increased legal protection of children. Once again, it is a pity that with regard to children no systematic research of the country reports has been done. A systematic assessment is still needed.
38. Further progress was made with the adoption by the Parliamentary Assembly on 1 February 1990 of Recommendation 1121 on the rights of the child. This recommendation, based on the ground-breaking report by Mrs Ekman (Doc. 6142) on behalf of the Assembly's Committee on Legal Affairs and Human Rights, reflects a very comprehensive view of children's rights and was characterised by two main developments.
39. First, marking a clear shift in the debate over the legal competence of children, the Assembly declared that "… in addition to the right to be protected, children have rights which they can exercise independently, even against opposing adults" (Paragraph 5). Secondly, the Assembly recommended "elaborating an additional protocol to the European Convention on Human rights concerning the rights of the child" (Paragraph 13.B). Thus, through an additional protocol to the European Convention on Human Rights, it could be made clear that the rights of the child are included in existing human rights instruments. Furthermore, the monitoring process would be much more effective, since the European Court of Human Rights would become responsible.
40. Besides these proposals, Recommendation 1121 contains many other interesting concrete ideas, including the institution of a Children's Ombudsman in each member State. It is clear that the Recommendation attempted to streamline children's rights as set forth in the Convention on the Rights of the Child and also to strengthen the CRC at the European level.
41. Assembly Recommendation 1121 (1990) gave rise to the European Convention on the Exercise of Children's Rights, opened for signature in January 1996. It entered into force on 1 July 2000. This Convention is not concerned with substantive rights but with procedural rights. By strengthening and creating procedural rights, which can be exercised by children themselves, the Convention aims at facilitating the exercise of the substantive rights of children, in particular in family proceedings affecting them.
42. Although its area of application (family law) is relatively limited, according to some observers this Convention represents a major step forward with regard to children's increasing legal capacity to act. This claim is unjustified. Article 12 of the UN Convention on the Rights of the Child provides for the right of the child to make his/her views known and ensures that account will be taken of these views in every matter of procedure concerning the child.
43. By contrast, and most unfortunately, the European Convention only offers the child the possibility ("… allow the child …", Art. 6b), and as stated above, only in a specific area of application, which does not really complement Article 6 (Right to a fair trial) of the European Convention on Human Rights and Article 9 (Right to live with and to have contact with parents) of the UN Convention on the Rights of the Child. In addition to this, closer analysis of the text shows (see eg. the section on monitoring) that this Convention represents a weakening of the UN Convention. The regionalisation of the minimum standards of the CRC should aim to strengthen and not to weaken the child's legal position. In fact this European Convention is a missed opportunity to improve the legal protection of Europe's children from both a procedural and a substantive point of view. It should not have been established in its present form. The Council of Europe would have done better to take up the idea of an additional protocol to the European Convention on Human Rights, as proposed by the Parliamentary Assembly in Recommendation 1121.
44. It is significant that by the end of March 2001 only 4 member States (the Czech Republic, Greece, Poland, and Slovenia) had ratified the Convention on the exercise of children's rights. Even these countries restricted themselves to very few types of proceedings within the already restricted field of application.
45. Besides the Parliamentary Assembly's powerful Recommendation 1121 and the unfortunate European Convention on the Exercise of Children's Rights, there were two other important developments during the period after 1989.
46. Firstly, in 1991, the Committee of Ministers launched a four year (1992-1995) Childhood Policies Project. It was run by a multi-disciplinary Co-ordinating Committee comprising representatives from the following areas: social policy, human rights, health education, youth, migration, crime problems, mass media, equal opportunities, legal co-operation, sports, labour, social security and local government. This innovative project was characterised by coherence and comprehensiveness, based as it was on the three main pillars of the UN Convention on the Rights of the Child: participation, provision and protection. The results of the project were presented at the concluding Conference in Leipzig (May 1996).
47. In parallel with the work of the Childhood Policies Project, the Parliamentary Assembly decided in 1993 (Order 491) to develop, in cooperation with Unicef, a European strategy for children, which at European level could serve as inspiration and guidance for senior policy-makers and all those who actively support children's causes in their respective activities. On 24 January 1996, thus before the Leipzig conference, the Assembly adopted Recommendation 1286 on a European strategy for children complemented by Order 514 for promoting children's causes. Since Leipzig meant the official end of the Childhood Policies Project the "Strategy" was designed to give political impetus to its successor. Here may be noted a shift of power: the former was under the competence of the Committee of Ministers, the latter on the initiative of the Parliamentary Assembly.
48. Recommendation 1286 (1996) invites the member States to make children's rights a political priority and lists a variety of concrete proposals, including the establishment within the Council of Europe of a permanent multidisciplinary intergovernmental structure to deal with issues relating to children and to draw up an annual report on the state of children in Europe. However, it has to be said already at this stage that unfortunately the Committee of Ministers did not give effect to many points of this recommendation, which is discussed more fully below.
2.2.2. The European Union
49. At the EU level no spectacular changes in regard to childhood policies can be observed in the period after 1989. Social policies in general and childhood policies in particular continue to be characterised by tension between the tendency to centralise and the subsidiarity principle. However some interesting trends could be observed.
50. Firstly, in spite of the fact that children hardly appear in the basic EU treaties (Rome, Maastricht, Amsterdam) and where they do, are regarded as appendices of parents who are in turn seen as workers, there is already an impressive catalogue of measures which concern children indirectly. However, they lack coherence and are mainly characterised by a conventional child protection approach. Areas covered by this fragmented policy are, among others, family policy, custody and legal kidnapping, migrants within the community, immigrants and refugees from outside the community, poverty, education, day care, sexual exploitation, the media, children with a disability, the exchange of young people, minimum age for employment, working conditions for young people, toy safety, protection against accidents in the home, youth unemployment, adoption, and so on. However the EU itself has no central focal point, no co-ordinating structure for developing and streamlining a coherent and comprehensive children's rights policy.
51. Secondly, the adoption of the UN Convention on the Rights of the Child (CRC) in 1989 was the starting point for the European Parliament (EP) to draw attention to the children's rights cause. Indeed in July 1990 the EP adopted its first resolution on the CRC, urging member States to ratify the CRC as a matter of urgency. The resolution also called upon the European Commission to adapt the CRC to the specific situation of the EU, in the form of a draft European Charter on the Rights of the Child. In December 1991 the Gröner Report on the problems of children in the EU was adopted and resulted in a draft European Convention, prepared by the Committee on Legal Affairs and Citizen's Rights. The Bandres-Molet Report finally resulted in the EP Resolution A3-0172/92 on a European Charter on the Rights of the Child (July 1992).
52. This Charter does not, however, add very much to the CRC and adds even less to Recommendation 1121 of the Parliamentary Assembly of the Council of Europe. It does look more closely at the specific situation in the EU, with specific problems for citizens arising out of the common market and free movement of people (e.g. migration, social security, family reunification, etc…). It goes without saying that in this regard children are a particularly vulnerable section of the EU's population. However their specific problems are mainly the result of the absence of a genuine social policy under the supra-national competence of the EU. This is why the Charter has mainly symbolic value. Indeed it is part of the wider EP political strategy designed to bring about a social Europe, a citizen's Europe and therefore also a children's Europe. This also explains why the Charter mentions neither an implementing nor a monitoring procedure.
53. The Treaty of Amsterdam (1997) included some articles affecting children, the main aim being their "protection", e.g. the new Article K.1 tackling offences against children. Some other articles give limited coverage to the promotion of children's rights: Article 13 widens the scope of the anti-discrimination clause, for example to include "age"; Article 137 on social exclusion can be used for children too; Article 143 on demography could be used to collect age-disaggregated statistics which can improve knowledge about children.
54. However there was no recognition of "the child as European citizen", despite intensive efforts by NGOs (mainly coordinated by EURONET, a European network for children's rights).
55. Under the French Presidency of the EU during the second half of 2000, these efforts were pursued at two levels: on the one hand the drafting of the EU Charter of Fundamental Rights and, on the other, the revision of the Treaty on European Union via the Intergovernmental Conference (IGC) process. Here again NGOs (Euronet) were extremely active in seeking, successfully, to include references to children. The final decisions on the Charter and the Treaty amendments were taken at the Nice Summit in December 2000. However the results were rather disappointing. The Charter was officially proclaimed but not incorporated into the Treaty. Thus it is not (yet) binding on the member States. The issue of the Charter's legal status has been identified as a matter for the Belgian Presidency to deal with in the second half of 2001.
56. For reasons already mentioned the results achieved at the EU level are meagre and remain disappointing. Nevertheless the fifteen EU member States, having all ratified the UN Convention on the Rights of the Child, are legally bound to implement it. Up to now, despite the fact that they form a supra-national body, they have preferred to ratify it separately, which may be considered an historic anachronism.
3. Conclusion
57. This section has shown that after 1989, the year of the UN Convention on the Rights of the Child and the collapse of the "iron curtain", real changes can be noticed. Firstly, the CRC was ratified by all Council of Europe member States and, hence, by the EU member States. Thus it remains the principal international children's rights text in Europe.
58. At the level of the Council of Europe, unlike the period before 1989, the period following is characterised by a very strong move towards a coherent, comprehensive approach in line with the CRC. Besides the main treaties (the European Convention on Human Rights and the Revised Social Charter), Parliamentary Assembly Recommendation 1121 (1990) and the Childhood Policies Project in particular can be seen as real landmarks. Assembly Recommendation 1286 (1996), in advocating the establishment of a permanent multidisciplinary intergovernmental structure within the Council of Europe, moved further still towards greater coherence. However, the adoption of the European Convention on the Exercise of Children's Rights was a disappointment, since it weakened the CRC.
59. At EU-level no real progress towards the acceptance of children as European citizens was made. Despite an impressive series of activities of indirect benefit to children, these are mostly characterised by a protection approach and are highly fragmented. Coherence and comprehensiveness are non existent. No real co-ordinating structure was established. Nor is there any substantial support for the more comprehensive Council of Europe activities, which would be most welcome given the budgetary resources of the EU.
III. A EUROPEAN STRATEGY FOR CHILDREN
60. As Recommendation 1286 (1996) on a European strategy for children is the Parliamentary Assembly's most recent comprehensive statement regarding children, and since the United Nations General Assembly will hold a Special Session on Children in New York on 19-21 September 2001, it is worthwhile to focus here on the content of the Recommendation and to assess its implementation against the criteria of coherence and comprehensiveness in particular.
1. Content
61. Assembly Recommendation 1286 (1996) aimed at making children's rights a political priority. Its operative part may be divided into two.
62. The first part (paragraphs 6-9) is concerned with urging or inviting the national governments of the member States, via the Committee of Ministers, to take action to promote the rights of the child as a priority through:
- the systematic collection of reliable information on children;
- a comprehensive, consistent and co-ordinated approach to childhood policy including the establishment of multidisciplinary structures at all levels;
- the appointment of an independent authority such as an ombudsman to promote and monitor children's rights;
- the introduction of "child impact statements" designed to assess the impact of proposed legislative or regulatory measures in all fields;
- investment in children and giving them budgetary priority;
- the promotion and provision of systematic training in children's rights;
- the promotion of international co-operation, etc.
63. The second part (paragraph 10) deals with co-operation within the Council of Europe itself. The Assembly recommends that the Committee of Ministers:
- set up, within the Council of Europe, a permanent multidisciplinary intergovernmental structure able to deal with all issues relating to children. This proposal would indeed effectively enable the intersectoral action of the Childhood Policies Project to be taken a significant step further;
- instruct this intergovernmental body, as part of its terms of reference, to draw up an annual report on the state of Europe's children, giving a comprehensive account of the situation and an outline of positive achievements and serving as a measure of what else needs to be done to satisfy the requirements of the UN Convention on the Rights of the Child, and to submit this report to the Parliamentary Assembly; this report would be the subject of an annual discussion within the relevant Parliamentary Assembly committees;
- involve other competent international organisations, in particular the UN Committee on the Rights of the Child, the European Parliament, Unicef, the various relevant non-governmental organisations, and indeed children themselves in the activities of this structure in appropriate ways. Here again the efforts made by the Childhood Policies Project could be taken a step further to become a genuine network at the pan-European level.
2. Follow up
2.1. Implementation within the Council (Paragraph 10).
64. Already in 1996 the Committee of Ministers instructed the Steering Committee on Social Policy (CDPS) to examine the proposals in Paragraph 10 of Assembly Recommendation 1286 (1996). However, the CDPS agreed that it would be neither desirable nor realistic to set up a multidisciplinary committee or structure as recommended by the Assembly, and saw no need for additional reporting beyond what was required under the UN Convention on Rights of the Child.
65. At their Second Summit held in Strasbourg in October 1997, the Heads of State and Government of member States of the Council of Europe adopted a final Declaration which, under the heading the "Security of Citizens", strongly emphasized the protection of children, but limited itself to the latter aspect of policy. Some member States were not happy to see the Council of Europe's action concerning children restricted to the protection aspect.
66. Under the heading "Social Cohesion", the final Declaration proposed a Programme for children which was approved by the Committee of Ministers' Deputies in June 1998, for completion by the end of 2000. The terms of reference of the Programme for children referred to the principles of participation, protection and promotion as enshrined in the UN Convention on the Rights of the Child and Assembly Recommendation 1286. A "Forum for Children" was set up as a multidisciplinary intergovernmental structure, more or less as the substitute for the one that was envisaged in the framework of Recommendation 1286 (Paragraph 10). The European Committee on Social Cohesion (CDCS), set up in November 1998, was given responsibility for the general implementation of the Programme.
67. Regarding the Content of the Programme, three key elements were identified:
- children and their environment;
- children and day care;
- social support systems for children at risk of, or who have been victims of, abuse, violence and exploitation.
68. Three expert committees, or "Focus Groups", were given responsibility for the activities under each element. The Committee of Ministers added a long list of specific issues for possible consideration within the programme, the final choice falling on a study of children living in conditions of vagrancy, seminars on children with HIV and children at risk in residential care, as well as a draft action plan against sexual abuse and exploitation in the Baltic States.
69. The results were presented at the Conference "Children at the Dawn of a New Millenium" in Nicosia, Cyprus (27-29 November 2000). An overview of the Programme activities and results is published in CDCS PC(2000)6.
2.2. Implementation within the individual member States (Paragraphs 6-9)
70. As has been seen, in Recommendation 1286 (1996), the Parliamentary Assembly called on governments to promote the rights of the child at national level. However, since the Committee of Ministers did not accept all the Assembly's proposals, the recommendation lost political impact. Moreover, up to now there has been no systematic evaluation of the implementation of the recommendation by national governments. Thus no direct empirical material is available.
71. However it would be of interest to check the initial and periodic reports that governments are due to submit in accordance with Article 44 of the UN Convention on the Rights of the Child. Also the end-decade reports by Council of Europe member States drawn up as a follow-up to the Plan of Action adopted by the World Summit on Children could provide another important source of information. (The Conference on Children in Europe and Central Asia, scheduled for 16-18 May 2001 in Berlin, promises a summary of these end-decade reports).
72. Despite the lack of documentary evidence, one can assume that substantial progress has been made by national governments in the attainment of some of the proposals set forth in Assembly Recommendation 1286 (1996). For instance, independent children's ombudsman has been established in several member States. Indeed, with the support of Unicef, a European Network of Ombudspersons for Children (ENOC) was established in 1997, with member-institutions currently in thirteen countries. Some governments have created a Ministry responsible for childhood or appointed a co-ordinating Minister for children's rights. Others have established "observatories" to make children more visible through systematic collection of information. Many countries have fostered the creation of national coalitions on children's rights. One government (Flanders, Belgium) has introduced by law a "child impact assessment" mechanism. Several steps have been taken to inform children and adults alike about the rights enshrined in the UN Convention on the Rights of the Child. Provision has been made more or less systematically at national and international levels for specific training for professionals in children's rights.
73. A wide range of initiatives to enable the participation of children in decision-making which affects them have been taken at several levels of society, including judicial hearings, schools and other institutions. Worth mentioning are pupils' school councils and children's city councils. Even at the international level they have their networks such as the Organising Bureau of European School Students Unions (OBESSU) and Youth Planet, the European umbrella of children's city councils.
74. In some countries there have been discussions and proposals on political participation of children, with a view, for example, to lowering the age at which young people can vote. Finally, few countries have taken steps to adjust their international co-operation policies, and more specifically their policies towards developing countries, to the need to promote the implementation of the UN Convention on the Rights of the Child outside Europe.
3. Conclusion
75. Parliamentary Assembly Recommendation 1286 (1996) on a European strategy for children built on the merits of Recommendation 1121 (1990) and the Childhood Policies Project, not least in consolidating the change in the perception of the child as enshrined in the UN Convention on the Rights of the Child and in maintaining comprehensiveness and coherence.
76. Implementation of the proposals directed at national governments (Paragraphs 6-9) is under way, although not always as a direct result of the Assembly's Recommendation. However, lack of systematic follow-up assessment precludes any clear picture of the impact and the results attributable to the Recommendation. Moreover, lack of follow-through by the Committee of Ministers sapped much of its political impact.
77. The second part of Recommendation 1286 (1996) (Paragraph 10), which is about proposals to the Council of Europe itself, was not properly followed up by the Committee of Ministers. The end result was the Programme for Children. However admirable and necessary the Programme was in itself, one has to conclude that this was weak response in that it omitted the main characteristics of an adequate children's rights-based policy and threatened a return to scattered and fragmented policies, instead of instituting the desired coherent and comprehensive policy. Moreover, it reflected a mainly child protection approach instead of the more comprehensive child rights approach (3P's). Moreover there was no really clear action plan for the future and, of paramount significance, no provision was made for a genuine permanent multidisciplinary structure.
78. We have to conclude that, unfortunately, the implementation of this very important Assembly Recommendation has not been fully realised, probably because of the lack of a proper structure within the Council of Europe as proposed by the Assembly. Therefore, it is high time for the Council of Europe to take the authoritative lead again and to develop a renewed adequate comprehensive and coherent action plan based on Recommendation 1286 (1996) so as not to lose the powerful lead taken already in 1990 with Recommendation 1121. The 2001 UNGASS on children offers an excellent opportunity to do this.
IV. RECOMMENDATIONS: A RETURN TO COHERENCE AND COMPREHENSIVENESS
79. It is clear that the UN Convention on the Rights of the Child (CRC) is the most effective children's rights instrument in existence, including at European level. Firstly it has been ratified by 191 States, making it almost universal. All 43 member States of the Council of Europe (including all 15 EU member States) are parties to the CRC. Secondly, it reflects a human rights based approach which means that children are seen as subjects, as rights-holders and not merely as beneficiaries. As a consequence, States parties are accountable to them, i.e. they are legally bound to implement its provisions based on this view of the child. Thirdly, it is a comprehensive instrument. Indeed for the first time in the history of human rights it covers in one single binding instrument civil and political rights as well as economic, social and cultural rights. The intention in bringing them together in one comprehensive instrument was precisely to emphasize that these rights are all equally important and even interdependent. None of these rights can stand alone. The same goes for the three principles underlying the Convention: right to protection, provision and participation, with the emphasis on the indivisibility and the equal importance of these rights.
80. As a consequence, the Convention must be implemented in accordance with these characteristics. In fact they can be seen as basic quality criteria for a genuine child rights policy.
81. Bearing in mind that the CRC provisions are minimum standards, it is expected that in transferring them to more homogeneous regions (Africa, Europe…) they can be complemented and strengthened through regional instruments. The same goes for the accountability of the respondents.
82. Since the Council of Europe, according to its Statute, works to harmonise policies by adopting common standards between its member States, especially in the social, legal and cultural areas, and not least in the field of human rights, it is the appropriate institution to take the lead in developing a proper regional i.e. pan-European, child rights policy across all its sectors of activity.
83. It follows from all the above that there is an urgent need for the Council of Europe to take the initiative again by adopting a renewed sustainable Council of Europe action plan for the implementation of children's rights based on the requirements derived from the CRC, i.e. characterised by coherence and comprehensiveness, and, of course, by a rights-based approach.
84. Thus the Parliamentary Assembly could recall its past proposals to elaborate either an additional protocol to the European Convention on Human Rights (Recommendation 1121 (1990), Paragraph B, and Opinion 186 (1995), Paragraph 11, ii), or an adequate European Convention on Children's Rights (Recommendation 874 (1979), Recommendation 1121 (1990), Paragraph B).
85. One could say that this proposal aims only at legal protection. This is true except for the fact that the UN Convention on the Rights of the Child is about legal protection of the "rights" of children, i.e. not only their civil and political rights but also their economic, social and cultural rights, not only their right to protection but also their rights to provision and to participation.
86. As said the CRC's standards are minimum standards. There are additional legal instruments which complement and strengthen these standards. It is of paramount importance to launch a new ratification drive now.
87. Strengthening the legal protection of children at European level can be complemented by coherent proposals for their improved social protection.
88. Last but not least, in order to make such proposals an important tool of action it has to be very clear for the purpose of accountability that these recommendations are to be addressed to:
- the national governments;
- the Council of Europe itself;
- other international organisations; and
- the corporate sector.
89. Secondly, there is a need for a permanent structure to support, follow up, and assess on a systematic and regular basis the results and the difficulties of such a policy as well as the need for further international co-operation.
Reporting committee: Social, Health and Family Affairs Committee
Reference to committee: Order No. 514 (1996)
Draft recommendation unanimously adopted by the committee on 3 September 2001
Members of the committee: Mrs Ragnarsdóttir (Chairman), Mr Hegyi, Mrs Gatterer, Mr Christodoulides (Vice-Chairs), Mrs Albrink, MM. Alís Font, Arnau, Mrs Belohorská, Mrs Biga-Friganovic, Mr Bilovol (alternate: Stozhenko), Mrs Björnemalm, MM. Brînzan, Brunhart, Cerrahoğlu, Cesário, Cox, Dees, Dhaille, Dzasokhov, Evin, Flynn, Ms Gamzatova, MM. Gibula, Glesener, Goldberg (alternate: Michel), Gregory, Gül, Gusenbauer, Gustafsson, Haack, Hancock, Herrera, Mrs Hřegh, Mr Hörster (alternate: Hornung), Ms Jäger, Mrs Jirousová, Mr Kitov, Baroness Knight, Ms Lakhova, Mr Liiv, Ms Lotz, Ms Luhtanen, Mr Manukyan, Mrs Markovska, MM. Marmazov, Martelli, Marty (alternate: Schmied), Mattei, Monfils, Mularoni, Naydenov, Olekas, Ouzký, Padilla, Mrs Paegle, MM. Pavlidis, Podobnik, Popa, Poroshenko (alternate: Khunov), Poty, Mrs Pozza Tasca, MM. Provera, Rizzi (alternate: Cioni), Seyidov, Mrs Shakhtakhtinskaya, Mrs Smerecynska, Mr Smirlis, Mrs Stefani, MM. Surján, Telek, Ms Tevdoradze, Mrs Troncho, MM. Tudor, Vella, Mrs Vermot-Mangold, MM. Vos, Wójcik, Zidu.
NB: The names of those members present at the meeting are printed in italics.
Secretaries to the committee: Mr Newman, Ms Meunier and Ms Karanjac