In Custodia Legis
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Preface by the Honorable Ted Poe
Representative for the 2nd District of Texas, United States House of Representatives
Within the last century, the idea that children need safeguards and protections separate from those of adults greatly impacted both domestic and international law. Although the children’s rights movement has roots as early as the eighteenth century, it wasn’t until the twentieth century that children were viewed as more than a labor hand or an economic value. What began as an effort to protect children from long hours of labor and its corresponding health defects, turned into an organized and influential movement.
The children’s rights movement promotes legal protections and safeguards for children, distinct from those of adults. After each world war, international legal instruments increasingly included protection for children across the globe. The League of Nations Declaration of 1924, and the successive United Nations’ Declaration of the Rights of the Child in 1959, declared that children need safeguards and protections separate from those of adults and that these protections should begin even before birth.
The major global and regional legal instruments of the twentieth and twenty-first century are included in The Law Library of Congress’ Children’s Rights: International and National Laws and Practices, a superior and comprehensive analysis of the significant children’s rights laws. Each domestic and international is summarized; relevant clauses and language are defined and highlighted; and the effects of each are described.
Children’s Rights examines sixteen nations, across five continents: Argentina, Australia, Brazil, Canada, China, France, Germany, Greece, Iran, Israel, Japan, Lebanon, Mexico, Nicaragua, Russia, and the United Kingdom (England and Wales). For each nation, the study focuses on the domestic laws and policies that affect child health and social welfare, education and special needs, child labor and exploitation, sale and trafficking of children, and juvenile justice. Children’s Rights also lists which pertinent international treaties the nation has ratified and implemented.
Children’s Rights will enable researchers, legislators, and academics to compare and contrast how children are treated among the different continents and which policies and laws have had the most profound impact on the younger generations.
There has been much progress in the children’s rights movement, but more nations must act to protect those who most need it. As a former judge, I saw firsthand how crimes against children affected their future. Children are a nation’s future. The best gift we can give to the world is to ensure a safe, healthy, educated, and able future generation. And that’s just the way it is.
Introduction by Dr. Rubens Medina
The Law Library of Congress is very pleased to present this multinational, comparative legal study on the rights of children. It is one of the many legal research products that are frequently generated by expressed request of a member of the United States Congress. It is not only of interest to our lawmakers but also in the interest of the public since our legislators are representatives of the people’s interests. Congressman Ted Poe (TX-02) instructed the Law Library to compile the individual country studies into one electronic publication to be offered to the nation and the world as a tribute to our youth.
Ancient civilizations entrusted heads of families with omnipotent authority over their children. The rather common underlying legal assumption was that children lack the capacity to discern correctly between prescribed behavioral standards, a condition that made them legally comparable to property and therefore sellable. Academicians have debated on the boundaries of patria potestas (currently translatable into parental authority). As an example, the Roman 12 Tables assigned this power to the fathers. Strict interpreters sustained that this authority was extreme and a remnant of pre-existing “practices of barbarous origin and primitive character” (Table VI, Law I, II and III. S.P. Scott, The Civil Law, Vol. XII, 64-65 (The Central Trust Company 1932)). A more conciliatory approach interpreted the precepts as having gradually evolved to restrict irresponsible and abusive exercise of such authority.
It was not until the 20th Century that the legal status of children was subjected to serious reviews and corrections. The idea that children have rights finally emerged and were embodied in Family Codes and Code of Minors. They were enacted to recognize children as “developing beings whose moral status gradually changes” thus demanding a realistic understanding of their interests within the families and the larger social context (Introduction to Philosophical Views of Children: A Brief History in the Moral and Political Status of Children (David Archard & Colin Macleod eds., 2005)).
Children hold our hopes for a better future. Their status has been a subject of concern for lawmakers, scholars, judges, lawyers, and common citizens. National laws and regulations as well as international treaties have been dedicated to children with increased interest during the last century.
This legal study represents the current status of enforceable laws in a number of countries. Hopefully, this study will help readers have a more detailed understanding of the universal standards on the rights of children to make the relationships, between children and their parents, teachers, judges, lawyers, and adults in general, more conducive to a peaceful society.
International Laws and Practices
The growth of children’s rights as reflected in international and transnational law has transformed the post-war legal landscape. This overview describes some of the major global and regional legal instruments that have contributed to this transformation, as well as specific relevant provisions in broader human-rights related instruments and in international agreements on child protection and placement. (HTML) (PDF, 185KB)
Country Reports
Argentina
The long awaited national Law for the Integral Protection of Children and Adolescents was enacted in 2005 to implement the UN Convention on the Rights of the Child, ratified by Argentina in 1990. In addition to adopting comprehensive protective measures for children, it lays the groundwork for a juvenile justice system, calls for institutionalized children to be integrated back into society, and establishes mechanisms to protect children from abuse and exploitation. (HTML) (PDF, 106KB)
Australia
Australia is a signatory to all significant treaties that impact on children’s rights. The rights and protection of children are governed by both Federal and state and territory law. Persons below the age of eighteen are generally considered children. [HTML) (PDF, 162KB)
Brazil
The Constitution provides the principles to be followed for the protection of children and adolescents in Brazil. These principles, coupled with the numerous international treaties signed and several pieces of legislation enacted, offer a wide range of protection to children’s and adolescents’ rights. (HTML) (PDF, 91KB)
Canada
Canada has ratified the Convention on the Rights of the Child and one of the two optional protocol to it while signing the other. Responsibility for implementation is split between the federal government and the provinces. (HTML) (PDF, 115KB)
China
China has ratified many major international documents with regard to children's rights protection. China's domestic legislation also provides protection for a wide range of children's rights. The reality, however, is disputable. Few accurate statistics could be obtained directly from the official source. In practice, enforcement of the treaty obligations and the legislative declarations remains a huge problem. [HTML) (PDF, 106KB)
France
France is a signatory to all the significant treaties dealing with children rights. It has in place several mechanisms to monitor the implementation of the 1989 Convention on the Rights of the Child, in particular, an ombudsman for children. (HTML) (PDF, 156KB)
Germany
Germany is a party to the global conventions that protect the rights of the child, yet Germany prefers to interpret these according to the precepts of European agreements, in particular the European Human Rights Convention, and also in accordance with German Constitutional guarantees. (HTML) (PDF, 109KB)
Greece
Based on the constitutional mandate to protect and safeguard children and on its international obligations arising from ratifications of agreements on children’s rights, which have the status of domestic law upon ratification, Greece has enacted various laws and has adopted a number of measures and services to promote and advance the rights of the children. The topics covered in this report are health and social welfare, education, labor and exploitation, and juvenile justice. In 2002, the Greek Parliament adopted a new law on human trafficking, and the government has allocated a number of resources in an effort to eliminate this scourge. In 2003, the juvenile system was reformed. An additional law was enacted in 2006 to combat intra-family violence, which also encompasses a prohibition of corporal punishment of children. (HTML) (PDF, 148KB)
Iran
The Islamic Revolution of 1979 introduced drastic and fundamental changes in the social, economic, and political structure of Iran. It marked the end of a 2,500 year-old monarchical regime and brought into power a religion-oriented government based on the Shiite school tenets of Islam. The change in the nature of the regime from secular to religious had its impact both on domestic legislation and international conventions. (HTML) (PDF, 26KB)
Israel
Israel adheres to international conventions to which it is a signatory and maintains a special set of laws to protect children. In addition to health benefits applicable to all Israeli residents, special benefits apply specifically to pregnant women and children. Special welfare benefits are also directed at assisting families with children and, particularly, the disabled. The law requires at least ten years of compulsory education and protects children from labor and sexual exploitation. The system recognizes different rules in the adjudication of juveniles. (HTML) (PDF, 118KB)
Japan
Japan is a signatory of many international conventions which aim to protect the rights of children. There are various domestic laws to promote children’s well-being. Almost all children in Japan are covered by health care insurance. Families with small children which do not have a high income level can receive an allowance from the government. Local governments support pregnant women’s and infants’ health and give advice to them. Schools also provide health examinations. Parents are obliged to have their children attend primary and secondary schools for nine years. The government provides this mandatory education free of charge. (HTML) (PDF, 182KB)
Lebanon
Despite the armed conflict that consumed the country and its institutions for a long period of time until 1989, Lebanon ratified the Convention on the Rights of the Child relatively quickly. The existing Lebanese laws comply with most of what is required under the Convention, and the Lebanese government adopted a number of amendments in its attempt to comply fully with the balance of such requirements. (HTML) (PDF, 74KB)
Mexico
The Mexican Constitution provides that the State has the duty to promote respect for the dignity of all children and the full exercise of their rights. It also provides that children have the right to satisfy their nutritional, health, educational, and recreational needs. Several laws have been enacted in order to implement this mandate, most importantly the federal Law on the Protection of the Rights of Children and Adolescents. In addition, Mexico is a signatory to several treaties that impact children’s rights. (HTML) (PDF, 103KB)
Nicaragua
Nicaragua has issued many legislative enactments to comply with the international legal instruments to which it has subscribed. Chief among them are: the inclusion of the Convention on the Right of the Child as an express constitutional mandate; the promulgation of the Code of Childhood and Adolescence and the General Law on Education; extensive amendments to the Penal Code protecting minors; adoption of a new General Law on Health with its Program of Comprehensive Care for Women, Children, and Adolescents; and creation of a new Labor Code, raising the minimum working age and protecting young workers from being exploited. (HTML) (PDF, 122KB)
Russia
Protection of children’s rights is a serious problem for Russia, particularly because of the worsening demographic situation and progressive involvement of youngsters in criminal and other underground activities. Several presidential programs, together with major pieces of legislation, address this issue, which is at the center of domestic public discussions; because of insufficient budget financing and restrictions on work of nongovernmental organizations, however, legislative declarations remain largely unimplemented. It is expected that the newly created institution of a Children’s Rights Ombudsman and introduction of the long delayed juvenile justice system will improve the situation. This paper analyzes legislation that regulates the protection of children’s rights and evaluates government attempts to enforce relevant laws. (HTML) (PDF, 108KB)
United Kingdom
Within the United Kingdom of Great Britain and Northern Ireland, England and Wales is the component nation in which largely English law prevails. This report does not address children’s rights in Scotland or Northern Ireland, although a number of the provisions discussed in the paper may also apply to them. The common law in England and Wales provides that the responsibility for the care and protection of children is with their parents “as guardians by the law of nature, and on the Crown as parens patriae,” with the powers of a child’s parents somewhat limited in certain areas by law. There are a number of substantive pieces of legislation affecting children and their rights in a number of different areas. The most substantive piece affecting children and their basic rights to a secure and safe environment is the Children Act 1989. This Act introduces the term ‘parental responsibility’ rather than the common law concept of custody. Parental responsibility is defined as “all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property.” (HTML) (PDF,180 KB)
Last Updated: 07/25/2012
