Child Human Rights Defenders

3.1.1 Non-Discrimination

Many of the issues on which CHRDs focus their activities link directly to claims of discrimination. It is also imperative that children are not themselves discriminated against when they act to defend the right to equal treatment (or any other rights) for themselves or others. Article 2(1) is not a standalone (it is a right not to be discriminated against in the exercise of other rights), but it is an immediate entitlement and not subject to progressive realization. 

Children report many instances of the types of discrimination prohibited by Article 2 when they exercise their rights as HRDs. 

Children should enjoy equal opportunities to act as HRDs. They should not experience unjustifiable differences in treatment whether that is compared to adults, among children and/or towards themselves as HRDs. However, there are some groups of children who may experience particular and intersecting forms of discrimination when they act as HRDs. While Article 2 provides children with protection from discrimination in the exercise of their rights in the CRC, children also enjoy other protections from discrimination, for example on the basis of their gender or race or the fact that they have a disability, as provided by the CRPD, as well as the Convention on the Elimination of All Forms of Discrimination against Women and the International Convention on the Elimination of All Forms of Racial Discrimination. Discrimination regularly impacts on girls, including those who are pregnant or parents, children with disabilities, those from diverse ethnic backgrounds, children who are refugees or stateless and those who are gender non-conforming or who identify as LGBTQI+, and many others.

While similar challenges have been identified for adult HRDs in the same position, children experience a multiple and intersecting disadvantage when they act as HRDs, their childhood itself compounding the discrimination they may face for other reasons (which may also be on multiple grounds). For example, the multiple challenges facing women HRDs have been extensively documented and can be compounded for girls, manifesting themselves to different degrees or in different forms at different ages. Older children may face discrimination due to limits on their decision-making power as children as well as the discrimination more commonly associated with adults like gender-based violence and barriers to accessing sexual and reproductive health and rights and services. A girl from an indigenous community, or with a disability for example might experience discrimination based on her ethnicity, age, gender and ability status.³ The same is true for children from indigenous communities who may experience challenges acting as HRDs because they use a minority language, or because of the discrimination and inequality they face generally, and this may be compounded by their age.

Children with disabilities enjoy a specific protection under Article 7 of the CRPD which states that they should enjoy all human rights and fundamental freedoms ‘on an equal basis with other children.’ This is not limited to the rights within the CRC or CRPD.⁴ Processes should take into consideration empowerment and support for children with disabilities as well as accessibility and reasonable accommodation (Article 2 of CRPD) to remove barriers to participation.  

Sexual orientation and gender identity are not mentioned explicitly in Article 2(1) of CRC but the Committee has stated that: ‘States should also take effective action to protect all lesbian, gay, bisexual, transgender and intersex adolescents from all forms of violence, discrimination or bullying by raising public awareness and implementing safety and support measures.’⁵ 

Article 2 does not specifically cover age as one of the protected categories. However, children are in many instances subject to restrictions that do not apply to adults and many of these (such as curfews or laws on anti-social behaviour) can impact adversely on CHRDs’ ability to form relationships and use public space.⁶ 

CHRDs also report experiencing stigmatization and abuse as a direct result of their activities, sometimes just because they are children:

Read alongside Article 12 of the Declaration, children should not be discriminated against as a consequence of exercising their right to act as HRDs. One way to achieve this is to include ‘age’ as a protected category in legislation protecting HRDs. The proposed Model Law for the Recognition and Protection of Human Rights Defenders includes reference to age:

One aspect of Article 2 of the CRC that is unique in human rights instruments relates to children whose parents act as HRDs. Children may be targeted specifically as a way of deterring their parents from acting as HRDs. Article 2(2) requires States to ensure that the child is protected against all forms of discrimination or punishment on the basis of the activities, opinions, or beliefs of the child’s parents, legal guardians, or family members. Thus, children, who may or may not be acting as HRDs alongside their parents, are entitled to protection from discrimination based on the beliefs, activities and opinions of their parents and guardians. This protection is a standalone provision.

3.1.2 Best Interests of the Child

Article 3(1) is unique to children in international human rights law: along with Article 12, it has been suggested that it ‘requires the adult world to continually re-appraise its activities by reflecting on how they might be felt by children.’⁸ It applies each time a decision is made for a child or children and each time a decision is made that could impact on children and exists partly in recognition of the fact that children often lack power, including political power, in the decisions affecting them individually and as a group. It is significant for CHRDs as it provides them with a platform on which to insist that governments and others include a specific focus on children in their actions concerning children. On the other hand, the best interests principle may also be used/ misused by adults (such as parents, teachers, police officers) to restrict what an individual CHRD may or may not do (e.g. getting or sharing information, speaking publicly, taking part in a group, campaign or protest), making it important that those who are making such decisions do so with a full understanding of what elements are included in ‘best interests’ and how this principle should be applied. 

The Committee has described Article 3(1) as ‘a substantive right, an interpretative legal principle and a rule of procedure.’⁹ It has also provided detailed guidance on what should be taken into consideration in determining what is in a child’s best interests. These include: the child’s own views; their other human rights; the views of parents and others; social and cultural considerations; and available empirical evidence.¹⁰ Crucially for CHRDs, ‘best interests’ cannot be equated only with ‘welfare’ or protection from harm. That is an important aspect of a child’s best interests but it is not the only one: their civil and political rights (to have views given due weight, freedom of expression, including the right to seek, receive and impart information), association and privacy must also be factored into any consideration. This is important always but especially important for CHRDs as the best interests principle is sometimes used to justify laws, policies and decisions that unduly restrict children’s exercise of their other rights on the basis that their activity may, for example, put them in danger or may have an adverse impact on their education. Those are important considerations in determining what is in a child’s best interests, but they are not the only ones. 

3.1.3 Right to Life, Survival and Development

Article 6 extends the widely recognized right to life to include, uniquely for children, an accompanying right to survival and development. Article 12(2) of the Declaration contributes to the interpretation of this for CHRDs in its emphasis on the protection ‘of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.’ ¹¹ 

The  Human Rights Committee has said that: ‘The duty to protect the right to life requires States to take special measures of protection towards persons in situation of vulnerability whose lives have been placed at particular risk because of specific threats or pre-existing patterns of violence. These include HRDs, officials fighting corruption and organized crime, humanitarian workers, journalists, prominent public figures, witnesses to crime, and victims of domestic and gender-based violence and human trafficking. They may also include children, especially children in street situations, unaccompanied migrant children and children in situations of armed conflict. ¹² The Committee on the Rights of the Child has also interpreted ‘development’ holistically, embracing not only physical and intellectual but also moral and social development. ¹³ On this definition, it will include the child’s capacity to understand and claim human rights. 

Clearly, States themselves are under an obligation to respect the right to life and must not endanger, hurt or kill children in their responses to the activity of CHRDs. They must also do everything that is reasonable to protect children from the life-threatening actions or omissions of non-States actors.¹⁴ This could, for example, require States to take reasonable preventive measures to protect children from threats to their life, including in the online environment.¹⁵ 

Children may also require additional protection when, for example, protests that might become violent are being policed. The responsibility to protect children during peaceful protests cannot fall entirely on parents.¹⁶ The  Special Rapporteur on the situation of human rights defenders (the Special Rapporteur) has said that it is unacceptable that ‘a peaceful assembly that is threatened with violence should be prohibited rather than be assured of protection in accordance with States’ responsibility.’¹⁷ Applying this to CHRDs, the default response to a concern that a peaceful protest may become violent should not be to stop children participating but to do everything that is reasonable to remove the threat to children’s life, survival or development (see further section 3.5.3). 

Finally, it must be recognized that States can only do what is reasonable and that children ‘may still take actions or make omissions which compromise their own enjoyment of these rights’ despite the State’s best efforts to ensure their life, survival and development.¹⁸

3.1.4 Right to Have Views Given Due Weight

Article 12 is a unique right, requiring those making decisions about children to seek their views and give them due weight in accordance with their age and maturity. It is of utmost significance to the activity of CHRDs as it ‘addresses the legal and social status of children, who, on the one hand lack the full autonomy of adults but, on the other, are subjects of rights.’¹⁹ Article 12(1) covers all matters affecting the child while Article 12(2) applies specifically to judicial and administrative proceedings affecting the child; children who are challenging breaches of their human rights in courts and tribunals must be given the opportunity to have their views heard and taken into account. Article 12(2) is explored further at section 4.

The child’s right to be heard under Article 12 (1) is a right of individual children and a right of groups of children.²⁰ It will apply to individual CHRDs when they are asserting their own rights in a context where a decision is being made about them (e.g. where they are challenging decisions about their own education or care). Article 12(1) also applies when CHRDs are affected as a group or working in a group. The obligation to ‘assure’ means that governments should actively create opportunities for children’s views to be sought on issues affecting them, including in relation to law and policy.

Article 12 has clear links to, and is strengthened by Article 8 of the Declaration:

One of the factors that distinguishes children’s enjoyment of Article 8 of the Declaration is that children generally cannot participate in government in the ways that adults do, through voting in or standing as a representative in a local election. The Committee has encouraged States to lower the voting age so that children may be heard in democratic political processes.²¹ However, no matter the minimum age for voting, governments should create opportunities for involvement of all children in public decision-making such as local, regional and national child and youth parliaments, summits etc., and should proactively consult children when making policy, using accessible material and methods. One of the recommendations in DGD2018 is that: ‘States should ensure that Children’s Parliaments and any other mechanism for child participation are provided with a clear and meaningful mandate and adequate human, technical and financial resources and are accessible to, and inclusive of all, children without discrimination.’ ²²

Article 12 applies to all children and efforts must be made to ensure that groups of children who are often marginalized, silenced and ignored are included. DGD2018 recommended that: ‘States should ensure that child human rights defenders in vulnerable situations, including children with disabilities, children in humanitarian situations, children in alternative care, children living in poverty and minority and indigenous children are also able to freely express their opinion and be provided with gender and age-appropriate support to facilitate their active participation in all matters concerning them.’²³ The Special Rapporteur on internally displaced persons has emphasized the significance of this for the realization of the other human rights of children who are marginalized, observing that: ‘their participation helps them to regain control over their own lives, contributes to their rehabilitation, develops their organizational skills and strengthens their sense of unity.’ ²⁴ 

In all cases, whether individual or collective, and across all decisions, there is an obligation to give children’s views ‘due weight’ in accordance with age and maturity. This is separate from parents’/ guardians’ right to provide guidance to the child in the exercise of their rights in line with the child’s evolving capacity under Article 5 of the CRC. While it has been suggested that the phrase ‘due weight’ in accordance with ‘age and maturity’ within Article 12 detracts from children’s right to freedom of expression, this is a misreading. An empowering interpretation acknowledges that this is an additional obligation on States, who should consider and take children’s views seriously when they are on a matter affecting the child. This right exists as an acknowledgment that children are less likely to be in a position to influence these decisions and that the ability to impact decisions made about oneself is at the heart of a human rights-based approach – underscoring dignity, equality and respect for the worth of the individual human. Children’s right to be involved in public decision-making demands a distinctive and additional response from States in recognition of the disadvantage: States are under a specific obligation to both seek the views of CHRDs and take them seriously (by giving them due weight in accordance with age and maturity). States are also required to ensure that children with disabilities enjoy the right to be heard on an ‘equal basis with other children’ and receive ‘disability and age-appropriate assistance’ to realize their rights (Article 7(3), CRPD).

Even when children’s views are sought, CHRDs report that they are not taken seriously. Many children identified that the primary barrier to the realization of their right to be heard was the negative attitude of adults.  

The Committee has recommended training for professionals and public awareness campaigns to promote respect for children’s views.²⁵  

[CHRDs also report concern that, even when their views are sought, they do not know how their views have been taken into account, if at all. Feedback is crucial and should be prompt, accessible to children and detailed enough for children to understand how their views have been addressed.²⁷ 

While Article 12 is of utmost significance in the context of the work of CHRDs, it applies only to matters and decision-making processes affecting children. CHRDs may be making human rights claims on issues where no decision is being made (bearing in mind that an omission may be a form of decision-making) and /or may be making claims about rights that do not affect children only or at all. However, Article 8 of the Declaration provides support for an interpretation of Article 12 recognising that a child’s engagement in public affairs is a matter affecting the child and therefore Article 12 applies. Moreover, ensuring that children are heard in their everyday lives enables them to build the skills and confidence to participate in other aspects of their lives including public decision-making. States should therefore take steps to ensure that children’s views are sought and taken seriously in all matters affecting them.

Therefore, it is important to understand that the Declaration supports the enhancement of child participation and clarifies that States should seek the views of CHRDs and take them seriously on issues that are of public interest and may not affect the child directly. On the other hand, child participation is fundamental to the empowerment of CHRDs as it requires adults to make extra efforts to engage children and seek their views. Child participation processes not only are key opportunities for children who already act as defenders to influence decision-making, they are also empowering experiences that may lead to children starting to act as defenders.