Upcoming CRC General Comment on Access to Justice and effective remedies
Child Identity Protection (CHIP) fully welcomes the forthcoming work on General comment 27 on children’s rights to access to justice and effective remedies announced by the UN Committee on the Rights of the Child (the Committee), which is especially relevant for children who are missing identities and/or are discriminated. Every child has the right to be registered immediately and to acquire a nationality from birth; to have their identity preserved, including nationality, name and family relations; and to know their family relations – genetic, gestational, social and legal – considered fundamental to their well-being and development (Articles 7 and 8 of the Convention on the Rights of the Child, CRC). In response to identity centred violations, equal access to justice for all children is required (SDG 16.3) and the provision of legal identity for all, including birth registration (SDG 16.9). For children without an identity, accessing justice is virtually impossible.
Despite the importance of identity, millions of children are missing fundamental elements. At least 167 million children are not registered at birth. Even when children are registered at birth, information may be incorrectly recorded such as the child’s parent(s) – if at all documented – which can also lead to statelessness and/or irresolvable questions about one’s origins. Whenever children are missing elements of their identity, international standards require that States speedily re-establish their identities.
Many children also face discrimination owing to their particular identity linked to ethnic, religious, cultural, language, parents’ affiliations etc. While States should be preserving the child’s identity, States and non-State actors sometimes discriminate against children based on their identity, which can lead to rights violations such as lack of access to education and health services, child marriage, child trafficking and genocide. Whenever children suffer discrimination, they are entitled to equal protection before the law and access to remedies.
Access to remedies must be available to children as independent rights holders and, in some cases, may require support of parent(s) depending on their evolving capacities. In October 2023, the Committee released a Statement on Article 5 of the CRC. Article 5 reads that “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention”. The statement specifically refers to “evolving capacities [of the child] as an enabling principle” for independent regulation of matters affecting them and the Committee states that “the direction and guidance provided by parents [which should decrease as the child capacities evolve] should aim at the harmonious development of children to their fullest potential and should enable them to gradually exercise their rights”.
Like all other rights in the CRC, Article 5 cannot be read alone and should be read with other rights such as Articles 7 and 8. Thus, children should be able to apply for birth registration independently of their parents, a practice that is still not accepted by many States. In the case of the nationality status of children, this should be considered separately from that of their parents, as they have an independent right to nationality. It should also be ensured that parents and family facilitate and support, rather than hinder, the child’s search for their origins if that is the child’s desire, in accordance with the child’s evolving capacities, in order to enable them to exercise their right to identity. Accordingly, that “States parties shall respect the responsibilities, rights and duties of parents” does not mean that they can impede the child’s search of origins/access to information about origins if it is considered by the parents contrary to their interest.
CHIP welcomes the statement of the Committee and “its affirmation of children as rights-holders”, and takes the opportunity to highlight the need to uphold children’s identity rights, including family relations, which entails guaranteeing access to the origins. CHIP looks forward to working with the Committee and other stakeholders to make access to justice and effective remedies the most inclusive, particularly in the context of identity rights.
