Dr Aoife Daly, European Children’s Rights Unit, School of Law and Social Justice, University of Liverpool, Submission to the Committee on the Rights of the Child for a General Comment on Children in Street Situations, 2016

The Importance of CRC Article 15: The Rights of the Child to Freedom of Association and to Freedom of Peaceful Assembly.[1]

Dr. Aoife Daly, April 2016

Association and Assembly Rights and their Relevance for Children in Street Situations

Article 15 of the UN Convention on the Rights of the Child (CRC) enshrines:“[T]he rights of the child to freedom of association and to freedom of peaceful assembly.”[2]In doing so, it isrecognised that children haverights and needs to participate in and influence the social and political lives of the communities in which they live.Because of the nature of the experiences of children in street situations,CRC Article 15 is a crucial provision. Such children may form groups in order to maximise survival,they may find themselves lacking in working rights, and authorities often try to disperse them from the streets.Yet theseactivities and experiencesare rarely understood as issues ofassociation and assemblyrights. Children are not often recognised as having or needing rights outside the family and child protection context. They often associate and assemble with others in more informal ways than adults, which are more difficult to protect legally and politically. The forthcoming General Comment is an important opportunity, therefore, to highlight the fact that association and assembly rights are asrelevantto children as to adults, if not more so.

Association and Assembly Rights andthe CRC General Principles

CRC Article 15 can only be properly understood when it is considered in the context of the general principles of the CRC. These principles are interrelated and interdependent.

CRC Article 2: freedom from discrimination

Children can face discrimination, i.e. unjustified detrimental treatment, solely because of perceptions of children as a group. The targeting of children for violence on the basis that authorities do not want them visible in the streets, as has occurred in Brazil,[3] is one such example.

Discrimination does not only involve explicitlypoor treatment of children, however. It can also involve formal equality, where there are no official barriers for children, but where the special needs of children as a group are not considered or met. As well as various provisions of the CRC which require this (e.g. CRC Article 2), the International Covenant on Civil and Political Rights[4] and the European Convention on Human Rights[5]also place obligations on states to ensure children’s special needs are considered.Where authorities fail to consider the special position of children in laws and policies relating to those in street situations, itwill constitute indirect discriminationif a particular measure is going to disproportionately adversely affect children in street situations.States must explicitly consider children – for example if aneducation programme for those in street situations is only available late at night, will this create barriers for children who may need to access it (they may be more fearful than adults of travelling late at night)?

CRC Article 6: right to life, survival, and development

Children’s CRC Article 6 right to life, survival, and development is a consideration where the very physical survival of children and their families may depend on work they do on the streets. Children are generally more vulnerable than adults. They can be more at risk on the streets because of their lack of experience, their small stature and other reasons. States are obliged to take special steps to protect children from harsh conditions, such as child curfews and other such punitive laws,[6] which prevent them from surviving on the streets where children have no choice but to do that.Many such children survive street situations only because of the associations that they form with each other (and potentially with adults). Their greater vulnerability compared to adults means they must often find safety in numbers. States must simultaneously work to protect children in their reality (i.e. protect their right to be together on the streets) whilst also working to provide them with alternatives to the street (education, accommodation, financial assistance etc.).

CRC Article 3: best interest considerations

The vulnerability of children cannot be used as an excuse to exclude them from accessing their association and assembly rights.[7] If efforts are made to exclude children from the streets for their own safety this has to be fully justifiable.[8]Authorities do not work in the best interests of the child where they force children from public spaces, possibly into abusive ‘treatment’ to which children have not agreed, for example the “cleaning up the streets” operations conducted by police in Cambodia during which children were forcibly detained and abused in the guise of treatment.[9]In order to avoid unjustifiable interference with the association and assembly rights of children in street situations, authorities must offer genuine alternatives that are in children’s best interests, and engage in proper dialogue with children and their families.

CRC Article 12: right to be heard

Children must deal with the situation in which they find themselves, and should be recognised as experts on their own experiences. Their opinions must be sought on the matter of how to ensure their safety and security. This includes, for example, the right of children to form and join trade unionsunder ILO Convention No. 87, the Freedom of Association and Protection of the Right to Organise Convention,[10]and ICCPR Article 22. CRC Article 15 should also be understood to include this right, although it is not referenced specifically.Children, including those in street situations, have struggled to find adequate union protection, and have long been forming and joining associations of their own in order to improve their working conditions. It has proven controversial where children’s organizations have primarily sought improvements in working conditions (including for those under the minimum age for employment)rather than to seek to eliminate child labour immediately, as was seen recently in Bolivia.[11]Adults must recognise the realities of the livesof working children, including their immediate needs. The General Comment should call upon states to recognise children’s unions, and call on trade unions to support all working children no matter what age.

The Potential to Progress the Rights of Children in Street Situationsthrough Article 15

Bearing in mind the points above, the General Comment should highlight states’ duty to:

  • Consider children’s rights (including their views), particularly the special position of children, and their association and assembly rights, in any laws and policies affecting children in street situations.
  • Ensure that authorities and personnel such as police receive training on children’s rights (including association and assembly rights), and that special efforts are made to combat discriminatory attitudes about children.
  • Ensure that anyone who harms children in street situations should be held fully accountable.

It should also be outlined in the General Comment that civil society organisations should:

  • Engage the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association inchildren’s rights issues and avail of the assistance offered by the Special Rapporteur for public interest litigation on such issues.[12]
  • Bring petitions on the matter of association and assembly under the Third Optional Protocol to the Convention on the Rights of the Child.[13]
  • Start initiatives and litigate cases at domestic level to protect children’s association and assembly rights, resisting curfews and other punitive laws.[14]
  • Facilitate parents and children to advocate and lobby against heavy-handed measures affecting children’s association and assembly.
  • Work with trade unions to ensure that working children have union representation and adequate information on their working rights.

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[1] This submission is based on a 2016 publication: Aoife Daly, A Commentary on the United Nations Convention on the Rights of the Child, Article 15: The Right to Freedom of Association and Peaceful Assembly (Martinus Nijhoff Publishers, 2016).

[2]The full text of CRC Article 15 reads:

1.States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.

2.No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

[3]See Amnesty International, Brazil: Police ‘Still have Blood on their Hands’ 20 Years after Candelaria Massacre (July 24, 2013) accessed 11 Apr. 2016.

[4] ICCPR Article 24 states that children have “the right to such measures of protection as are required by his status as a minor”.

[5]Mayeka v Belgium (App No 13178/03)[2006] (ECtHR), para. 53.

[6]See Children’s Rights International Network, Global Report on Status Offences (Children’s Rights International Network, 2009).

[7]Human Rights Council, Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association Maina Kiai (UN Doc A/HRC/26/29, 2014), para. 10.

[8] See e.g. Human Rights Council (n7), paras. 23-24.

[9] Committee on the Rights of the Child, Concluding Observations: Cambodia (UN Doc No CRC/C/KHM/CO/2, 2011), paras. 38-39.

[10]ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

[11]See further ILO, New Law in Bolivia: ILO’s Concerns Regarding New Law in Bolivia Dealing with Child Labour – Statement (28 Jul. 2014) accessed 1 Aug. 2015.

[12] See UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Special Project: Using Litigation to Advance the Rights to Freedom of Peaceful Assembly and of Association accessed 10 Aug. 2015.

[13] Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (UN Doc No A/RES/66/138, 2011).Adopted 2011, in force 2014.

[14]See Children’s Rights International Network, n6.