(d)

(d) General Conventions on the Rights of Children

12. The United Nations Convention on the Rights of the Child (New York, 20 November 1989).

Apart from the specific fields of adoption, custody, abduction and legal status of children, the main international instruments setting a general framework for the rights of children are:

the United Nations Convention on the Rights of the Child (New York, 20 November 1989),
the European Convention on the Exercise of Children's Rights (Strasbourg, 25 January 1996),
the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (The Hague, 19 October 1996).

The United Nations Convention on the Rights of the Child (New York, 20 November 1989) (33) provides for a comprehensive "bill of rights" for children all over the world, by stating, first of all that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community. The Convention recognizes furthermore that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.

The instrument applies to every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier (Article 1). The document requires States Parties to respect and ensure the rights set forth in the Convention to each child without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. States Parties are also urged to take all appropriate measures in order to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members (Article 2).

The Convention prompts institutions, courts of law, administrative authorities or legislative bodies to take care that in all actions concerning children the best interests of the child are a primary consideration (Article 3). Basic rights of the child are set forth by the Convention as follows:

right to be registered immediately after birth and to have a name (Article 7);
right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents (Article 7);
right to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference (Article 8);
right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests (Articles 9 and 10);
right not to be unlawfully transferred abroad (Article 11);
right for the child who is capable of forming his or her own views to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child (Article 12);
right to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law (Article 12);
right to freedom of expression (this right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice) (Article 13);
right to freedom of thought, conscience and religion (Article 14);
rights to freedom of association and to freedom of peaceful assembly (Article 15);
right not to be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation (Article 16);
right not to be subjected to physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child (Article 19);
right to obtain refugee status or to be considered a refugee in accordance with applicable international or domestic law and procedures (Article 22);
right to enjoy a full and decent life, for mentally or physically disabled children (Article 23);
right to enjoy the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health (Article 24);
right to benefit from social security, including social insurance (Article 26);
right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development (Article 27);
right of the child to education (Article 28);
right of the child to be protected from economic exploitation (Article 32);
right to be protected from the illicit use of narcotic drugs and psychotropic substances (Article 33);
right to be protected from all forms of sexual exploitation and sexual abuse (Article 34);
right to be protected from abduction, sale or traffic in children for any purpose or in any form (Article 35);
right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Article 37);
right not to be deprived of his or her liberty unlawfully or arbitrarily (Article 37);
right for the children who have been lawfully deprived of their liberty to be separated from adults, unless it is considered in the children's best interest not to do so (Article 37).

For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the Convention, a special Committee on the Rights of the Child has been established (Article 43) (34). Every five years, States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized in the Convention and on the progress made on the enjoyment of those rights (Article 44) (35).

13. The European Convention on the Exercise of Children's Rights (Strasbourg, 25 January 1996).

The European Convention on the Exercise of Children's Rights (Strasbourg, 25 January 1996) (36) is a shorter and less comprehensive document than the UN Convention. It focuses mainly upon the topic of children's rights within judicial family proceedings affecting them, drawing its inspiration from Article 4 of the UN Convention, which requires States Parties to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the said Convention.

Actually, the object of the Convention is, in the best interests of children, to promote their rights, to grant them procedural rights and to facilitate the exercise of these rights by ensuring that children are, themselves or through other persons or bodies, informed and allowed to participate in proceedings affecting them before a judicial authority. For the purposes of the Convention proceedings before a judicial authority affecting children are family proceedings, in particular those involving the exercise of parental responsibilities such as residence and access to children (see Article 1).

According to Article 3, a child considered by internal law as having sufficient understanding, in the case of proceedings before a judicial authority affecting him or her, shall be granted, and shall be entitled to request, the following rights (Articles 3, 4 and 5):

to receive all relevant information;
to be consulted and express his or her views;
to be informed of the possible consequences of compliance with these views and the possible consequences of any decision;
to apply for the appointment of a special representative;
to apply to be assisted by an appropriate person of his/her choice in order to help him/her express his/her views;
to apply him/herself, or through other persons or bodies, for the appointment of a separate representative.

In proceedings affecting a child the judicial authority shall have the power to act on its own motion (ex officio) in cases determined by internal law where the welfare of a child is in serious danger (Article 8). In case of conflict of interest between the child and his/her parents, the judicial authority shall have the power to appoint a special representative for the child (Article 9).

The Convention encourages

the setting up of national bodies which perform, inter alia, the promotion and the exercise of children's rights (Article 12);
the provision of mediation or other processes to resolve disputes and the use of such processes to reach agreement in appropriate cases to be determined by the States (Article 13).

According to Article 16 a Standing Committee has been set up within the Council of Europe. It keeps under review problems relating to the Convention. It may, in particular:

consider any relevant questions concerning the interpretation or implementation of the Convention; the Standing Committee's conclusions concerning the implementation of the Convention may take the form of a recommendation;
propose amendments to the Convention and examine those proposed by other subjects;
provide advice and assistance to the national bodies and promote international co-operation between them;
exchange information with relevant organisations dealing with the exercise of children's rights.

14. The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (The Hague, 19 October 1996).

Also the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (The Hague, 19 October 1996) (37) is a shorter and less comprehensive document than the UN Convention. Elaborated inside the framework of the Hague Conference on Private International Law, it focuses mainly upon the topic of parental responsibility and measures for the protection of children, thus replacing, in relations between the Contracting States, the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors, as well as the Convention governing the guardianship of minors, signed at The Hague 12 June 1902.

This act aims to improve the protection of children in international situations, avoiding conflicts between their legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children (38). Scopes of the Convention (Article 1) are:

to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
to determine which law is to be applied by such authorities in exercising their jurisdiction;
to determine the law applicable to parental responsibility (39);
to provide for the recognition and enforcement of such measures of protection in all Contracting States;
to establish such co-operation between the authorities of the Contracting States.

The measures referred to above may deal in particular (Article 3) with

the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;
rights of custody (40);
guardianship, curatorship and analogous institutions;
the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child;
the placement of the child in a foster family or in institutional care;
the supervision by a public authority of the care of a child by any person having charge of the child;
the administration, conservation or disposal of the child's property (41).

Jurisdiction to take measures directed to the protection of the child's person or property is vested in the judicial or administrative authorities of the Contracting State of the habitual residence of the child (Article 5). The same provision also applies to children whose habitual residence cannot be established (Article 6).

In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and

each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.

The removal or the retention of a child is to be considered wrongful where

it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention (Article 7) (42).

According to Article 10, the authorities of a Contracting State exercising jurisdiction to decide upon an application for divorce or legal separation of the parents of a child habitually resident in another Contracting State, or for annulment of their marriage, may, if the law of their State so provides, take measures directed to the protection of the person or property of such child if

at the time of commencement of the proceedings, one of his or her parents habitually resides in that State and one of them has parental responsibility in relation to the child, and
the jurisdiction of these authorities to take such measures has been accepted by the parents, as well as by any other person who has parental responsibility in relation to the child, and is in the best interests of the child.

However, this jurisdiction ceases as soon as the decision allowing or refusing the application for divorce, legal separation or annulment of the marriage has become final, or the proceedings have come to an end for another reason.

As concerns applicable law, Article 15 provides for that, in exercising their jurisdiction, the authorities of the Contracting States shall apply their own law. However, in so far as the protection of the person or the property of the child requires, they may exceptionally apply or take into consideration the law of another State with which the situation has a substantial connection. The exercise of parental responsibility is governed by the law of the State of the child's habitual residence. If the child's habitual residence changes, it is governed by the law of the State of the new habitual residence (Article 17).

As a general rule, the measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States (Article 23). Recognition may however be refused under particular circumstances (43). If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they are declared, upon request by an interested party, enforceable or registered for the purpose of enforcement in that other State according to the procedure provided in the law of the latter State. Each Contracting State has to apply to the declaration of enforceability or registration a simple and rapid procedure (Article 26). As a general rule, no review of the merits of the measure taken is allowed (Article 27). Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State are enforceable in the latter State as if they had been taken by the authorities of that State. Enforcement takes place in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child (Article 28).

Finally, Articles 29 - 39 provide for co-operation between Contracting States by setting up Central Authorities to discharge the duties, which are imposed by the Convention.

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Section (e) --->

(33) The text of the Convention is available at the following URLs: <http://www.ngo.org/CRC/convention.html>; <http://www.pch.gc.ca/ddp-hrd/english/rotcmenu.htm>; <http://www.tufts.edu:80/departments/fletcher/multi/texts/BH953.txt>; <http://members.tripod.com/heimstadt/text.htm> As concerns the bibliography upon this topic see Longobardo, La convenzione internazionale sui diritti del fanciullo (New York, 20 novembre 1989), in Il diritto di famiglia e delle persone, 1991, p. 370 - 427; Balboni, La Convenzione sui diritti del fanciullo (New York, 20 novembre 1989), in Le nuove leggi civili commentate, 1992, p. 1151-1159; Giacalone, Sulla situazione di abbandono di minore straniero, in Giustizia civile, 1996, c. 3133-3134; Hammarberg, Making Reality of the Rights of the Child. The UN Convention: What it says and how it can change the status of children worldwide, available at the following URL <http://www.savechildren.or.jp/alliance/realall.html>; information on reservations and declarations concerning the Convention is available at the following URL <http://www.unicef-icdc.it/information/portfolios/juvenile-justice/convention/4-reservations.htm>.

(34) Information on the activities of such Committee is available at the following URL: <http://www.unicef-icdc.it/information/portfolios/juvenile-justice/committee/index.htm>. Information on other UN instruments in the field of juvenile protection is available at the following URL: <http://www.unicef-icdc.it/information/portfolios/juvenile-justice/instruments/index.htm>.

(35) In order to foster the effective implementation of the Convention and to encourage international co-operation in the field covered by the Convention:

The specialized agencies, the United Nations Children's Fund, and other United Nations organs are entitled to be represented at the consideration of the implementation of such provisions of the Convention as fall within the scope of their mandate. The Committee may invite the specialized agencies, the United Nations Children's Fund and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates. The Committee may invite the specialized agencies, the United Nations Children's Fund, and other United Nations organs to submit reports on the implementation of the Convention in areas falling within the scope of their activities;
The Committee shall transmit, as it may consider appropriate, to the specialized agencies, the United Nations Children's Fund and other competent bodies, any reports from States Parties that contain a request, or indicate a need, for technical advice or assistance, along with the Committee's observations and suggestions, if any, on these requests or indications;
The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of the child;
The Committee may make suggestions and general recommendations based on information received. Such suggestions and general recommendations shall be transmitted to any State Party concerned and reported to the General Assembly, together with comments, if any, from States Parties (Article 45).

(36) The text of the Convention is available at the following URL: <http://www.coe.fr/eng/legaltxt/160e.htm>.

(37) The text of this Convention is available at the following URL: <http://hcch.net/e/conventions/text34e.html>; an exhaustive bibliography on this topic can be found at the following URL: <http://hcch.net/e/conventions/bibl34e.html>. For a commentary in French see Lagarde, La nouvelle convention de la Haye sur la protection des mineurs, in Rev. Crit. DIP, 1997, p. 217.

(38) The Convention applies to children from the moment of their birth until they reach the age of 18 years (Article 2).

(39) For the purposes of the Convention, the term "parental responsibility" includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child (Article 1).

(40) This includes rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child's habitual residence (see Article 1).

(41) The Convention does not apply (Article 4) to

the establishment or contesting of a parent-child relationship;
decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption;
the name and forenames of the child;
emancipation;
maintenance obligations;
trusts or succession;
social security;
public measures of a general nature in matters of education or health;
measures taken as a result of penal offences committed by children;
decisions on the right of asylum and on immigration.

(42) So long as the above mentioned authorities keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only urgent measures as are necessary for the protection of the person or property of the child (Article 7).

(43) For instance:

if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for by the Convention;
if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State;
if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child;
if the measure is incompatible with a later measure taken in the non-Contracting State of the habitual residence of the child, where this later measure fulfils the requirements for recognition in the requested State.