Child Human Rights Defenders

3.2.1 Parents’/ Guardians’ Rights and Duty to Provide Guidance

Article 5 plays a role across the whole Convention,  and is hugely important in this context given the influence that families will have as to whether and how a child acts as a HRD. The provision recognizes the distinctive and important role of parents/guardians and communities in children’s lives and reflects the reality that parents would play a role in assisting children realize their rights as their capacities evolve. ¹ 

Article 5 is unique as it makes parents and guardians rights-holders (and duty-bearers) in a Convention designed for another group. It extends to parents/guardians and ‘others legally responsible for the child’. That might include, for example, community leaders or elders in a tribe.  They are entitled to provide children with guidance in the exercise of all of their other rights. This includes all of the child’s civil and political rights as well as the child’s right to be protected from harm. Parents also have a duty to provide guidance – meaning that children are also entitled to receive guidance. That duty should be recognized in domestic law.

The right/duty to provide guidance must be exercised in line with the children’s ‘evolving capacities’. This phrase has been lifted out of Article 5 and increasingly used as an interpretative approach across the Convention, but it is there first and foremost to apply to the right and duty to give children guidance. This applies across a child’s life: there is no minimum age at which a child may act as a CHRD and many children begin to engage with human rights issues while at primary school. However, Article 5 recognizes that the level of  parents’/ guardians’ guidance will diminish as children mature. ² The Committee has recognized that once  children have the capacity to enjoy and claim their rights independently, they no longer have a need to rely on the right to parental direction under Article 5. A key question is what the boundaries are and when, if at all, parents or guardians can deny their children permission to act as  CHRDs or limit the activities in which they take part. CHRDs recognize the need for support and guidance from parents and adults in their communities.

Others commented on the fact that parents tended to want their children to pursue education rather than any form of activism or were worried about their children’s safety.

However, many children were clear that the nature of the support should be to facilitate rather than prevent children from acting as HRDs. 

There is a need for greater guidance as to what is required of States to respect, protect and fulfil the rights of the child to receive parental guidance in line with their evolving capacities.³ States should not interfere arbitrarily with parents’/guardians’ rights, responsibilities and duties. However, a challenge may arise in practice where a parent/guardian refuses to let a child act as a CHRD. These concerns might vary depending on the child’s age and the perceived level of danger. For example parents might be reluctant to allow a child to act as a CHRD even where the child is mature enough to make a decision for him/herself if there is a concern about the repercussions of the activity (e.g. an adolescent wishes to start an online campaign that may expose him/her to online abuse). CHRDs accept that the degree of parental involvement may be linked to the level of risk involved in the activity, or cultural, religious or political considerations, but emphasized that this needs to be assessed taking the child’s views on this into account. In all cases, the obligation on States is to enable CHRDs to exercise their rights safely and to inform and support parents/guardians so that they can advise and guide children appropriately.

3.2.2 Right to Care and Protection with Guidance from Parents/Guardians

Article 3(2) provides a strongly worded obligation on States to ensure the protection and care necessary for the child’s well-being. It receives little attention, largely because other Articles of the CRC address it collectively and some (such as Articles 19 and 18(2)) ‘mimic’ its content.⁴ It is of significance here as it underscores the obligation on the States to ‘defer’ to parents’ and guardians’ rights and duties.⁵ However, that deference is not absolute.⁶ There is a range of ways in which States might need to intervene to protect children’s well-being. It could be that parents are preventing a child from acting as a CHRD or coercing the child to act as a CHRD in circumstances where that may adversely affect the child’s well-being – e.g. encouraging the child to speak out publicly when that is likely to expose them to significant risk or to attend a protest that may be violent.

3.2.3. Parents’/Guardians’ Responsibilities and State Assistance

Much of Article 18 is focused on encouraging joint responsibility for children’s upbringing and on the support that the States should offer in this respect. However, the second part of Article 18(1) states that parents/ guardians ‘have the primary responsibility for the upbringing and development of the child. The child’s best interests will be their basic concern.’ This is highly relevant in the context of CHRDs, reading it alongside Article 5 and Article 3(2) in particular.

Children reported that parents/ guardians often discourage or do not give them permission to be involved in HRD activity as they are worried about their safety or impact on their education.

Some children recognized that their parents were concerned for their safety and best interests and accepted that. Others spoke of the support and encouragement they had from their families, sometimes after having to persuade them that it was appropriate, with the support of other CHRDs.

While Article 18 is often discussed in the context of parents’ responsibility to contribute to the realization of their children’s social and economic rights, it also applies to civil and political rights and includes ‘the fostering of values consistent with human rights.’⁷ This aligns with Article 16 of the Declaration which emphasizes the role that individuals have to play in raising public awareness of human rights. However, there has been very limited discussion of the fact that the responsibility of parents and guardians also applies to civil and political rights, such as the rights to freedom of expression, peaceful assembly and association. States should ensure that the CHRD’s family and community have an understanding and appreciation of all children’s rights and that they can also access information and support, such as legal assistance and psychosocial interventions. 

Finally, there will be instances where parents/guardians refuse the child permission to take part in HRD activity. States will not often be aware of the breach in most cases and, if they are it may be considered more harmful or just not practical or advisable to intervene in family life unless the child is considered to be at risk of significant harm. However, the State should provide specific services for CHRDs and their parents/guardians that can enable conflicts to be resolved by agreement and in ways that empower both the parents/ guardians and the child. Furthermore, CHRDs must be able to access redress when restrictions violate their rights.

3.2.4. Parents’/ Guardians’ Rights: Summary of Implementation Measures

Some parents/ guardians will themselves be acting as HRDs and their activity will have had an impact on their children’s views and actions. Children whose families act as HRDs should be entitled to protection from discrimination or harms that may be a consequence of that (see section 3.1.1). Parents/ guardians should advise their children without manipulating them for their own purposes (see section 3.4.2). However, when parents/ guardians are not themselves involved in HRD activity, the State has an obligation to enable them to support their children to realize their rights. However, the reality is that many parents and guardians are making decisions every day without taking into consideration their own rights or their children’s or indeed knowledge or awareness of their obligations in this regard.

The State can play an important role in this regard by educating parents about children’s rights, including their civil and political rights, from early childhood on. States should also promote a positive image of CHRDs, addressing any religious and cultural concerns as well as gender and other stereotypes. States can also take steps to alleviate parents’/ guardians’ concerns that children will be safe when they act as CHRDs (see section 3.4.5) by fulfilling their obligations to protect children. And finally, States can provide schools and teachers with guidance on protecting the rights of CHRDs, including their right to education, that can address concerns that parents/guardians might have in that regard. If States act to inform and support CHRDs’ families and create an environment where CHRDs can act safely, they will enable parents/ guardians to fulfil their obligations under Article 5 of the CRC and empower their children to act as HRDs.