“Drawing on relevant text and commentary from the UNCRC and UNComRC, analyses of legal scholars, and laws, regulations, frameworks and guidelines relevant to ECEC, including Aistear and Siolta, discuss your interpretation of the best interests principle and the principle of participation.”
Introduction 250
Historical background on the development of the children’s rights framework
Everyone has human rights and children, as young human, do have some rights that adults have in International Human Rights treaties. However, children’s welfare and rights, for the longest time, has been entrusted to adult society which primarily involved family, caretakers, educators and community. They were expected to be protected and supported so they can survive, grow, learn and develop to their fullest potential. However, millions of children are not. Several children across world face violence, abuse, neglect, exploitation, exclusion and/or discrimination on a daily basis (UNICEF, 2010).
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The rights for children was advocated, as early as, in the early 20th Century. In the aftermath of World War I, Eglantyne Jebb campaigned for the first international declaration for the rights of the child in 1924. An expanded version of this was adopted by United Nations in 1959. Later, in 1979, Poland proposed for a convention specifically for the rights of the children. After a decade of discussion and debate, the text of the Convention on the Rights of the Child (CRC) was prepared, which set forth a wide range of provisions for children. The CRC creates a new status for child where he/she needs to be understood as a ‘subject of rights’ establishing the concept of child entitled to full range of human rights. (Zermatten, 2010).
The international children’s rights framework
The Convention on the Rights of the Child (CRC) is the first legally binding international instrument to incorporate the full range of human rights—including civil, cultural, economic, political and social rights. It reflects a new vision for the child where they are neither the property of their parents nor are they helpless objects of charity. It offers a vision for the child as an individual and as the subject of their own rights. By recognizing the child this way, the convention identifies child as a member of a family and community, with rights and responsibilities. (UNICEF)
The CRC has been ratified by more than 190 countries since it was adopted by United Nations General Assembly in 1989. The near-universal ratification of the Convention reflects a global commitment to the principles of children’s rights. To enable the realisation of the convention, all States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must submit an initial report within two years of ratifying the Convention and subsequently submit periodic reports every five years. The Committee on the Rights of the Child, a body of 18 Independent experts, examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”. The Committee also publishes its interpretation of the content of human rights provisions, known as general comments on thematic issues and organizes days of general discussion. (OHCHR). Further to this, realization of child rights is also reviewed through the Universal Periodic Review (UPR) which is a UN review mechanism for the overall human rights situation in the member states every 4.5 years. It is a peer review mechanism and is more frequent that than the Committee report. The review is based on reports State submit, and also alternative reports submitted by civil society, including NGOs. The UPR presents an excellent opportunity to get children’s rights featured in international human rights debates and a check for the submission of the official State’s report. (CRIN)
Children’s rights theories and debates
The idea of children as right holders has been subjected to different philosophical criticism and consideration. (Archard 2016) There are two competing theories which have been extensively debated regarding the provision of rights to children. The Will or choice theory (Hart 1973; Sumner1987; Steiner 1994) emphasises rights as the protected exercise of choice which means that only individuals who are considered capable of making choices to enforce or waive off the co-related duty can be right holders. In contrast, the Interest or welfare theory (MacCormic 1982; Raz 1984; Kramer 1998) sees rights as the protection of interest to be enjoyed by the right holder which would in respect, impose duties on the responsible others. The contradiction here is whether children can be considered capable of exercising choices or it is the moral duty of the adults to work in the best interest of the child.
Debate around children rights is further detailed by emphasising that children should not be accorded with rights as they are incapable of agency and rights are best interpreted as protecting human agency and its preconditions (Griffin, 2002), however, they could atleast have welfare rights owing to the fundamental need of protection (Bridgehouse, 2002). However, the fact that children will and can be developed to beings capable of making choice, they should be given rights for the gradual development (Brennan, 2002).
Children’s rights in domestic constitutions and legislation
Ireland ratified the UN Convention on the Rights of the Child (UNCRC) in 1992. By ratifying the Convention, government confirm to their intention to put this commitment into practice. Article 4 of CRC requires State parties to take “all appropriate legislative, administrative, and other measure” for implementation of the rights. Therefore, the State needs to engage all sectors of society and children themselves. It requires compatibility of all domestic legislation with the Convention so that its principles and provisions may be enforced. (Para 1, General Comment No. 5, UN Committee on the Rights of Child, 2003)
Through the years, since the ratification, the Irish government has instigated various important developments in policy and practices related to children. These include the publication of the National Children’s Strategy, the appointment of an Ombudsman for Children and the establishment of a National Children’s Office (OMCYA). Many of these developments happened as a result of criticism following the 5 year reporting cycle, further developments included the establishment of the Department of Children and Youth Affairs in 2011 and appointment of Minister for Children and Youth Affairs.
The CRC General Comment No.5 document advises states parties that if they are to ‘‘promote and respect the rights of the child’’, at all levels, ‘‘a unifying, comprehensive and rights-based national strategy, rooted in the Convention’’ is necessary . (Para 8, General Comment No. 5, UN Committee on the Rights of Child, 2003) Ireland has responded by developing two children’s strategies – Better Outcomes, Brighter Futures (2014 – 2020) represents the first overarching national children’s policy framework which adopted a whole of Government approach and underpinned by a number of constituent strategies in the areas of early years, youth and participation and First Five (2019-2028) Ireland’s first ever cross-Departmental strategy to support babies, young children and their families.
The State party was, however, criticized for the lack of explicit rights for children in the Irish constitution. The Irish Constitution was written in 1937, at a time when children were ‘seen and not heard,’ when children were physically disciplined and considered possessions of adults. This was initially highlighted in an influential report1 by Justice Catherine McGuinness, who stated that the ‘‘high emphasis on the rights of the family in the Constitution may consciously or unconsciously be interpreted as giving higher value to the rights of parents than to the rights of children’’(McGuinness, 1993, p. 56). This case brought forward the fact that despite ratification of the UNCRC and subsequent positive policy developments, the legal and constitutional protection of the child and his/her rights had remained relatively subordinate to the rights of parents.(Kilkelly, 2008a; McGuinness, 1993).
Further to this, the findings of the Ryan Report, published in May 2009, exposed a systematic abuse of children living in institutions throughout the country, that spanned half a century. The societal attitudes that allowed this abuse to continue had to be challenged and overcome with a change in the constitution to make children visible and strengthening children’s rights. (Children’s Rights Alliance) Following a referendum, subsequently, the thirty first Amendment to the Constitution (Children) Act 2012, was made to strengthen children’s rights within the Constitution of Ireland. Article 42A of the Irish constitution
“recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.” (Thirty-first Amendment of the Constitution (Children) Act 2012.)
The thirty-first amendment of the constitution also says in Article 42A.4.1 that
“4 1° Provision shall be made by law that in the resolution of all proceedings—
i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall be the paramount consideration.”
It is to be noted that the amendment wording is very limited to the types of proceedings listed (children in care, child protection, adoption, guardianship, custody and access cases) which is narrower than the scope of the right in the Committee’s wording which extends to all administrative proceedings affecting the child. (Children’s Rights Alliance [CRA], 2016). It does, however, represent a significant advance on the existing constitutional position and provides a stronger basis for children’s individual rights. By explicitly recognising the rights of children in the Constitution, it will be possible for such rights to be taken into account and applied consistently by the courts. The inclusion of an express statement on the rights of the child will provide the courts with the power to balance a range of rights – the personal rights of parents; the rights of the child; the rights of the family; and the rights of the State (as guardian of the common good). The amendment promises to ensure that the best interests of the child will be “the paramount consideration.” (Children’s Rights Alliance [CRA], 2016).
This may help bring a change in outlook, within families, educational settings and community. It has the promise to influence how we see, understand and work with children. The binding obligation becoming an enforceable law, even though limited to certain scenarios, brings it to the fore-front of awareness about the best interest of the child to be of “the paramount consideration.”.
The Best Interests principle
While the best interest principle is now a constitutional provision, it is worthwhile to critically analyse its legal and philosophical underpinnings. The best interest principle of the child derives from the Article 3 of the UN convention on the Rights of the Child which says that,
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.” (UN Convention on the Rights of the Child, 1989).
The concept of the “child’s best interests” is not new. Indeed, it pre-dates the Convention and was already enshrined in the 1959 Declaration of the Rights of the Child (para.2), the Convention on the Elimination of All Forms of Discrimination against Women (arts. 5 (b) and 16, para.1 (d)), as well as in regional instruments and many national and international laws. However, what UNCRC has done is to create a new status for the child based on the recognition that s/he is a person and has the right to live a life of dignity. Since the promulgation 1989, there is a shift from considering a child as the object in need of attention and protection, to be understood as the subject of rights. (Zermatten, 2010)
The UN Committee on the Rights of the Child felt a need for discussing the broader implication of the Conventions on the Rights of the child for early years as the States’ reports submitted contained limited information, more related to child mortality, birth registration and health care only. It aimed at emphasising the recognition of young children as holders of all rights enshrined in the Convention and understanding early childhood as a critical period for the realization of these rights. (UN Committee on the Rights of Child, 2005)
The Committee has given a working definition of “early childhood” as all young children: at birth and throughout infancy; during the preschool years; as well as during the transition to school (Para 4, UN Committee on the Rights of Child, 2005). This consideration of young children as holders of all rights, requires a shift from the traditional view of considering “early childhood mainly as a period for the socialization of the immature human being towards mature adult status.” Each child needs and should be respected as persons in their own rights. (Para 5, General Comment No. 7, UN Committee on the Rights of Child, 2005).
The principle of best interests applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and well–being, as well as measures to support and assist parents and others who have day–to–day responsibility for realizing children’s rights. This implies that anyone responsible and authorised to take decision for the child or on their behalf should be aware and empowered to take decisions keeping in account the best interest principle. These decision would include child’s healthcare, education and well-being. Young children should have the provision to be represented independently in all legal proceedings by someone who acts for the child’s interests, and to be heard in all cases where they are capable of expressing their opinions or preferences.
UN Committee further emphasises on the ‘Best interest of young children as a group or constituency’. It is worth noting that 26% of the world population are children under the age of 15, who have no voting rights, however, are impacted by the Government and State decisions. The UN Committee, therefore, emphasises that all law and policy development, administrative and judicial decision–making and service provision that affect children directly or indirectly must take account of the best interests principle. (Para 13, General Comment No. 7, UN Committee on the Rights of Child, 2005).
The principle of Participation
The principle of participation is now enshrined in the constitution however its role for early childood educators has a much far reaching remit. The following section first critically appraises the legal and philosophical interpreations of the principle before considering its applicaiton to ECEC practice. The principle of Participation is in support of the best interest principle. Article 12 of UNCRC states that
“State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child” (Article 12(1) UN Convention on the Rights of the Child, 1989).
It recognizes the right of the child, as an individual, to express his/her opinion in all matters affecting them. In accordance with the age and maturity of the child, he or she may participate and become an active player in his/her life and decisions impacting them. The Committee mentions that a widespread practice has emerged in recent years, which has been broadly conceptualized as “participation”, although this term itself does not appear in the text of article 12. This term has evolved and is now widely used to describe ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes. (Para 3, General Comment No. 12, UN Committee on the Rights of Child, 2009) .
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It is to be understood that the principle of participation is both a right for the child and obligation of the state body for the voice of child to be heard, not only for the reason of involvement but also because there is a direct or indirect implication of the decisions made. Article 12(2) mentions that “the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child.” The right of all children to be heard and taken seriously constitutes one of the fundamental values of the Convention. This article establishes not only a right in itself, but should also be considered in the interpretation and implementation of all other rights listed in the UNCRC. (Para 2, General Comment No. 12, UN Committee on the Rights of Child, 2009) .
However, in most societies around the world, implementation of the child’s right to express her or his view on the wide range of issues that affect her or him, continues to be impeded by many long-standing practices and attitudes, as well as political and economic barriers. (Para 4, General Comment No. 12, UN Committee on the Rights of Child, 2009).
“Children’s views are still, for a substantial proportion of the adult population, variously considered to be ill-informed, irrational, irresponsible, amusing or cute.” (Lansdown, 1996)
Participation by children at home, school and community is usually rhetorical and not meaningful and this is primarily due to the unwillingness of the adult in authority to make any real transfer of power to young children. Adult assumptions about the capacity of children and young people to form views have resulted in a questioning of their ability to be deemed ‘rational and reliable’ (Alderson, 2008, p. 155).
The general comment is also structured according to the distinction made by the Committee between the right to be heard of an individual child and the right to be heard as applied to a group of children (e.g. a class of schoolchildren, the children in a neighbourhood, the children of a country, children with disabilities, or girls). (Para 9, General Comment No. 12, UN Committee on the Rights of Child, 2009).
It is quite evident that Article 3 and Article 12 are interdependent on each other. To determine the best interest of the child, it is only relevant that the view and opinion of the child is heard and considered. One establishes the objective of achieving the best interests of the child and the other provides the methodology for reaching the goal of hearing either the child or the children. It will not be possible to implement article 3 if the components of article 12 are not respected. (Para 74, General Comment No. 12, UN Committee on the Rights of Child, 2009).
“Achieving meaningful opportunities for the implementation of article 12 will necessitate dismantling the legal, political, economic, social and cultural barriers that currently impede children’s opportunity to be heard and their access to participation in all matters affecting them. It requires a preparedness to challenge assumptions about children’s capacities, and to encourage the development of environments in which children can build and demonstrate capacities.” (Para 135, General Comment No. 12, UN Committee on the Rights of Child, 2009).
Early Childhood Education and Care
Political, social and fiscal influences operating at the macrosystem level have had a pro- found impact on the development of early childhood education (ECE) globally. Economic prosperity in the developed world, in the early part of the twenty-first century, led to increasing demands for a more highly skilled workforce. At the same time, the United Nations Convention on the Rights of the Child (UNCRC), ratified in the UK in 1989 and in Ireland in 1992, placed children’s rights at the centre of social and political agendas. Offering a direct challenge to the dominant developmental discourse which positions children as adults in waiting, from a social-constructivist perspective, the UNCRC portrays children as competent citizens with rights and responsibilities (Gray and Winter 2011).
Despite widespread support at a national level, many countries found it challenging to implement the obligations of the UNCRC. This led a number of countries, including Ireland, to review their existing policies to facilitate the enactment of the Convention. Prior to 1990, ECE was considered the preserve of the family in Ireland, principally the mother, and received limited State investment. Subsequent to the publication of the UNCRC, largely supported by funding from the European Union, there was significant investment in the development of childcare facilities. During the same period, Ireland introduced a range of policies including Siolta, The National Quality Framework for Early Childhood (2006) and Aistear (2009).
Embracing the spirit of the UNCRC, Aistear acknowledges children as competent learners with the right to be heard. The framework was developed after extensive consultation with a range of stakeholders including practitioners, childminders, parents, children, researchers, training and education institutions and the Irish Steiner Kindergarten Association (NCCA 2009b).
The task, however, must engage not just governments but all members of society. The standards and principles articulated in the Convention can only become a reality when they are respected by everyone—within the family, in schools and other institutions that provide services for children, in communities and at all levels of administration. What is done or not done in childhood affects the whole of one’s later life and does so in a way that is largely irreversible. A life in which choices can be made is more valuable than one in which they cannot. So the preconditions for the possibility of such life should be secured.Education in not merely of instrumental worth for future but of value for the child here and now. (Archard 2016)
Conclusion: 250
What Zermatten (2010) has emphasised for the Best interest of the child holds true for the whole of CRC, that there is a serious risk of misinterpretation of the rights if we do not understand the concept objectively. It may a serious risk of varied decisions being taken depending on the subjectivity of the person(s) interpreting the rights of the child or children.
According to a study commissioned under the Irish Research Council’s Research Development Initiative, in conjunction with the Department of Children and Youth Affairs and the Department of the Environment, Community and Local Government, it was found that “School is the area that emerges as least conducive to listening to children and young people.” (Horgan et.al, 2015)
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Nutbrown, C. (1996) ‘Respectful Educators – Capable Learners, Children’s Rights and Early Education’ Sage Publications
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Horgan, D., Forde, C., Parkes, A. Martin, S. Mages, L. and O’Connell, A. (2015) “Children and young people’s experiences of participation in decision-making at home, in schools and in their communities.” Dublin: Department of Children and Youth Affairs. Available at: www.dcya.ie
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Websites:
www.unicef.org
www.ohchr.org
www.dcya.gov.ie
www.crin.org
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