CHILDREN’S RIGHTS AND THE LAW.
Children have all of the same rights as adults, but they also have additional rights which are defined in child-focused international conventions.
The main international convention which defines these rights is the UN Convention on the Rights of the Child (UNCRC), and it includes things like the rights to play and to understand their rights, and reiterates the right to education. The UNCRC also has four ‘general principles’:
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non-discrimination
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best interest of the child
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right to life survival and development
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right to be heard.
As well as creating specific laws to ban child marriage and to protect children from sexual abuse, governments can create other laws to deliver children’s rights, within the principles of the UNCRC, which can prevent child marriage.
1.
Making school enrolment and completion of education legal requirements
Everyone has the right to education, and every government has some form of law which enables children to go to school. However, a combination of weak education laws and poor implementation in some countries create the conditions for girls to stop their schooling and be married as children.
The United Nations Sustainable Development Goals call for 12 years of education for every child, starting with a year of early childhood or pre-primary education. If governments implement this, all children would be in school until at least the age of 17. Unfortunately, many countries’ education laws and policies do not support this, and some countries limit compulsory education to far fewer than 12 years. For example, in Bangladesh, children finish their compulsory education at the age of 10. Bangladesh has one of the highest rates of child marriage in the world: more than half of young Bangladeshi women were married as children.
Even if a government has compulsory education laws for 12 years, additional policies have to be in place to ensure the law is implemented.
Education must be free, of good quality, and accessible to all children. This means having enough schools - particularly in rural areas; no entry or enrolment fees; free school materials such as books, pens, and paper; enough trained teachers who have decent pay; and safe, usable school facilities, such as functioning toilets.
Regular monitoring of school attendance, and enough staff to ensure any children who do not attend or drop out are able to return to school.
Safe routes or methods of transportation to and from school.
Free school meals, especially in poorer communities.
If these laws and policies are in place, they can protect children from many different rights abuses - not just child marriage.
It is also important for these laws to apply even if a child is already married. In many countries where child marriage happens, there may be exceptions to the law which allow a married child to drop out of school, or laws which stop pregnant girls from attending school. Other countries allow children to stop attending school if they have a child - this is the case in several parts of the United States, for example. Education law must explicitly state that all children must attend school, regardless of marital or parental status. If girls are pregnant, allowances should be made for the later stages of pregnancy and in the period after childbirth, but it should be clear that she must return to school and complete her education.
For children living in or fleeing from areas affected by conflict and emergencies, the right to education still applies. However, in practice, it is much more difficult for displaced children to access this right - which contributes to the higher likelihood of girls being married in these situations. This makes it critical to create specific ways to implement the right to education in emergencies, which gives special consideration to child protection.
2.
Creating strong laws to protect children from extreme forms of abuse.
Everyone has the right to safety and freedom, and children specifically have the right to life survival and development. Creating laws to ban child marriage is an important way to prevent the violation of these rights, but there are other laws which can be implemented that tackle extreme forms of abuse committed against children.
This could include child sexual abuse laws, laws which ban violence against children in all situations - including their homes and their schools, and laws which ban child labour. These forms of abuse usually happen within a child marriage.
An adult man having sex with a child is child sexual abuse, regardless of any wedding ceremony or marriage certificate.
Married girls are more likely to be victims of domestic violence, partly due to the power imbalance between an adult man and a child.
When girls are married, they usually drop out of school and are expected to work full time in the home - this is a form of child labour.
India has a detailed set of laws to protect children against all forms of child sexual abuse, including online child sexual abuse, and it works with the law which bans child marriage by criminalising sexual relations with a child even if they are married. You can read more about child sexual abuse laws and child marriage here.
Many countries have laws which ban different forms of physical violence against children, but sometimes these do not apply or are not implemented when the child is married and the violence is conducted by their spouse. These kinds of loopholes in the law should be eradicated. In addition, physical violence between spouses of any age can also be criminalised.
Child labour is work that is dangerous and harmful to children, and/or interferes with their schooling. In child marriages, girls are usually expected to drop out of school, and will take on many hours of domestic chores such as cleaning, cooking, taking care of older family members, and raising any children in the household. Even if a child is doing these chores in their own household, it is still classified as child labour if it stops them going to school, or if they are doing more than one or two hours of light work each day. If there are laws which ban child labour in a country, they should specifically include domestic labour as this will provide an additional protection for children in child marriages.
However, all of these laws are dependent on safe and accessible ways for children to report these crimes, and on governments providing enough resources to support children through the justice process. This could include having dedicated phone numbers to report crimes against children, local teams of government staff who are trained and responsible for child protection, and professionals who visit family homes to check on the health and safety of children.
3.
Enabling the right to justice for all children.
Everyone has the right to equal protection of the law, and everyone has the right to seek justice if their rights are violated. This means that any child should be able to access protection of the law from child marriage, because child marriage violates many children’s rights. In countries where child marriage is explicitly banned, a child who is in a child marriage, or who is aware their family plans to marry them off, should be able to report the crime. A planned child marriage can then be prevented by a legal intervention, and children who are already married should be able to bring their case to court.
The UN Convention on the Rights of the Child also provides specific protections to ensure children receive their rights to protection of the law and to justice.
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The right for children to be heard in any legal proceedings which affect them, and to represent themselves or be represented by someone else.
A duty for state services and legal institutions to act in the best interests of the child.
​However, in most countries where child marriage can be allowed by permission of a judge or legal officer, there is no opportunity for a child to have their say. In any case, child marriage is never in the best interest of the child, so no state or legal institution should permit or recognise a child marriage.
When child marriage is legally allowed, it doesn’t just violate both of these protections: the violation is being committed by governments themselves.
In practice, it is extremely difficult for children to access their right to justice, regardless of which crime or rights violation has been committed against them. The process of registering a crime, the cost of legal advice and representation, and then standing up in court to make your case can be intimidating for anyone of any age. For children, these barriers may feel enormous, and for girls who are in child marriages, reporting their husbands and their families can put them - and any children they have - at serious risk of harm.
There are some good practices in countries which have committed to implement the UN Convention on the Rights of the Child, and these practices should be adapted or emulated in every country which has ratified this treaty. Practices which aim to enable access to justice for children contribute to creating ‘child-friendly justice’. This means that special provisions are made which make it easier and less intimidating for children to take part in a legal process and to understand what is happening throughout. The process should protect children from harm during and, as far as possible, after the process. Child-friendly justice should also be swift, taking into account the brevity of childhood and the urgent need for children to rehabilitate - rather than have their trauma prolonged by a drawn-out legal process.
Below are some of the key aspects of child-friendly justice.
REPORTING A CRIME OR RIGHTS VIOLATION.
Free, 24-hour helplines for children who are victims or for children who are concerned about one of their peers, with short numbers which are easy to remember. These helplines should be staffed by people who are trained to provide advice and guidance to children so that they can decide for themselves what their next steps should be. In cases of immediate concern, or where a child who is a victim decides they want an immediate intervention, helpline staff should be able to refer cases to the appropriate authority.
Anyone who is in a position of authority and from whom a child may seek help must be trained to support children, be able to quickly act upon any report of a crime or a situation where a child is at significant risk, and be able to safely refer children to an appropriate part of the legal or state system. This normally includes teachers, police officers, social workers, community leaders, doctors, and nurses.
If a crime is reported to the authorities, child victims must have swift access to an independent, trained support person or ‘appropriate adult’, who will accompany the child throughout the legal process and explain to them what is happening - but who is not their legal representative. Importantly, children must also have a way to request a different support person should they be unhappy with the person they were initially allocated.
Immediate interventions should take place which prevent any further harm to the child, including emergency, safe accommodation for children who live in situations where they are exposed to harm, and they should be connected with rehabilitative support such as counselling as quickly as possible.
PARTICIPATING IN THE JUSTICE PROCESS.
Children should have access to free legal advice, provided by a lawyer who is trained to work with children. Should the child decide to move forward with a legal case, any fees for bringing a case should be waived, and legal representation must be available for free. This is usually known as ‘legal aid’ - when the state pays the costs for someone who is participating in a legal process and who cannot afford to pay for legal support themselves.
Children should be allowed to bring cases to court on their own. Although most countries allow a court case to be registered in the name of a child, few countries allow a child to do this without being represented by an adult, or without the consent of their parents. This can be difficult if the adult or parents have actively participated in or supported a child marriage. Children must be able to make their own case, or be represented by an adult of their own choosing. This person must act in the best interests of the child, and have no conflict of interest in the child’s case.
Child-friendly courts or children’s courts should be established to hear cases where children have been victims of crime, and when children have been accused of a crime. Child-friendly or children’s courts are courtrooms which create safe, non-intimidating conditions for children to participate in the justice process. Creating courts which only work on children’s cases can also accelerate the speed of justice for children.
Characteristics of a child-friendly or children’s court can include:
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the right for children to be heard is paramount, and all people involved must act in the best interests of the child
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age-appropriate language to help children understand what is happening
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trusted support persons are allowed to accompany children
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no access to the public or the media
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trained professionals to interview children, limits on the number of times children are interviewed, and no use of cross-examination
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use of audio-visual technology to allow children to give their evidence remotely, or screens so children giving evidence in person cannot be intimidated by others in the room
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shorter sessions or allowing more breaks if children need them.
However, in many countries, there are long waits for justice. This is due to a combination of factors, but the overriding causes are lack of financing to implement justice - which leads to more cases being registered in a year than courts can deal with, and delays to proceedings caused by the COVID-19 pandemic. The pandemic had a particularly hard impact on justice in poorer countries, where remote/online court hearings could not be reliably held.
India has implemented special courts which are intended to fast-track justice for children who have been victims of child sexual abuse. Overall, these courts have proven to be very effective in accelerating the speed of justice for children, and have a higher rate of ‘disposal’ or conclusion of cases than regular courts. However, the disposal rates are extremely varied between each of India’s states: in Maharashtra, 80% of cases registered in a year were heard, but in West Bengal, the rate is only 2%.
Most countries have yet to fully implement the right to justice for children in an accessible or child-friendly way, and which prioritises the best interests of children.
4.
Ensuring all children understand their rights.
Human rights can be difficult to understand, and special efforts have to be made to support children to understand their rights. The UN Convention on the Rights of the Child has a specific clause which says that governments must make the contents of the convention widely known, to adults and children alike.
There are many benefits when children understand their rights, and this can start from as early as five years old. It can help them to advocate for their own rights with their parents and their wider communities, and understand when their rights are not being delivered or respected, and encourage them to take action if their rights are being violated. For example, if a child comes to learn that their family plans to marry them off, and they understand that this is a violation of their rights, they can try to discuss with their parents why the marriage should not happen, or they can seek help from a teacher, community leader, social worker, or a child helpline.
In 2015, UN member countries committed to the Sustainable Development Goals (SDGs), which are 17 sets of targets that aim to deliver people’s rights, increase everyone’s living standards, and protect our natural environment. Goal 4 focuses on the right to education, and has a target for countries to include human rights education in schools. The SDGs are not a formal treaty, so it is not compulsory for countries to deliver them, but governments are expected to provide reports on the progress of the SDGs in their countries.
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Governments can support children to understand their rights if they create a law or policy that human rights education is included as part of the formal school curriculum, and if they ensure that teachers are trained and have the appropriate resources to deliver it. However, in countries which have challenges in delivering good quality education for all children, human rights education can be de-prioritised. These are often the same countries in which major violations of children’s rights occur, including child marriage.
