by Dr Brian Milne, consultant researcher on children’s human rights
This paper considers the implications of Brexit in terms of how the secession of the UK from membership of the European Union may impact on the human rights, therefore the lives of children.
Using international standards, the definition of a child used here is from birth to 18 years, although there are circumstances in which whilst young people attain age of majority, particular circumstances such as being maintained students add a few exceptions. Because of the nature of the topic, although the UK is naturally the focal point of Brexit, implications for the consequences of it extend both to UK children across the 27 remaining EU member states as well as to EU children in the UK. If anything, the consequences for the latter group would at this stage appear to be more uncertain, nevertheless it would be negligent not to examine it from both perspectives.
The expression we find used most frequently is ‘children’s rights’; on the other hand most professionals now prefer to refer to the more inclusive ‘children’s human rights’. That is far more appropriate in the minds of those of us who are not lawyers because, unlike some legal specialists, as mainly social scientists our work goes beyond children and very often their families to entire communities and occasionally entire nations.
For us the rights enjoyed, or that should be enjoyed, by children are parts of all human rights. The majority of lawyers and other specialists have adopted that, thus it is what I shall use throughout this paper. Human rights are universal and inalienable; that is to say they are indivisible, interdependent and interrelated. They are universal because everyone is born with and possesses the same rights, regardless of where they live, their gender or race, their religious, cultural or ethnic background. They are inalienable because people’s rights can never be taken away although there are attempts to deny them to or deprive people of those rights. Those rights are indivisible and interdependent because all rights whether they are political, civil, social, cultural and economic are equal in importance, thus none can be fully enjoyed without the others. They apply to all people equally and all have the right to participate in decisions that affect their lives. They are upheld by the rule of law and strengthened through legitimate claims for duty bearers to be accountable to international standards. It is especially because rights are universal that such distinctions as children’s or women’s rights are part of the indivisibility and interdependence but spelled out for practical reasons and for the elaboration of some aspects of those rights that need to be highlighted. There should therefore be no distinction between rights as they are presented and upheld in the EU as a union of 28 nations at this point in time or of the UK as a union of four nations should it secede from the EU.
The story of children’s human rights
Some background detail may help understand this paper better. In many ways children’s human rights are far older in terms of conceptual structure. There is often a debate as to the provenance of those rights but Eglantyne Jebb (1876-1928) is the leading contender having founded the International Save the Children Union in Geneva in 1920 of which the UK Save the Children Fund and the Swedish Rädda Barnen were the original members but is now present in many countries with Save the Children International at the centre of the movement. In 1923 Jebb went to Geneva for a meeting of the international union with a plan for a children’s charter in mind. She drafted a document outlining the rights of children and the duty of the international community to put those rights in the forefront of action and planning based on relief work immediately after WW1. The Declaration of the Rights of the Child, also known as the Declaration of Geneva, was adopted by the League of Nations in 1924. An expanded and refined version was adopted by the United Nations in 1959, and it was the main inspiration behind the 1989 UN Convention on the Rights of the Child (CRC).
In contention for bearing a great deal of influence of the human rights of children there is one other contender. Janusz Korczak, the pen name of Henryk Goldszmit (1878-1942), was a Polish-Jewish educator, author, and pedagogue who spent many years working as director of an orphanage in Warsaw. He eventually refused sanctuary to stay with the orphans when they were all sent from the Warsaw Ghetto to the Treblinka extermination camp in 1942. It is assumed h went directly to the gas chamber with his wards. What he left that contributes a great deal toward children is the importance of them as social actors with rights and participation in the delivery, use and diffusion of those rights. He wrote a number of books many of us use quite extensively for guidance.
Poland has another claim to children’s human rights heroes through Professor Adam Łopatka, sometimes referred to as ‘Father of the Convention’ one of the driving forces behind updating and improving on the Declaration to have set of binding rights and was president of the Working Group on the CRC. Between 1979 and 1988 they took the 19 point draft based on the Declaration to draft the 54 article human rights instrument that was adopted by the General Assembly of the UN in November 1989. Drafting and refining took more or less a decade to take into account many social and legal differences between states, such as the diverse forms of marriage and marriage laws adoption and fostering between Islam and Christianity and various other very contrasting and occasionally conflicting laws and traditions. At every stage of drafting there was always a UK government appointed working group member, sometimes a rapporteur, various observers and throughout the coordinator of the NGO consultative group who wrote much of the information used as background by lawyers and others to this day. In some respects, like much other human rights legislation, the UK had a key role every step of the way.
So, the CRC was adopted in 1989, the UK signed in 1990; it entered into force in 1990, the UK ratified in 1991 making it binding to incorporate it into each of the legal systems in the UK. The entire EU has signed and ratified, therefore it is part of all national laws, but there is no provision for the EU to sign as a body. There are 140 signatories, but some states went on to ratify immediately without taking that step, thus 196 states party; at present the USA is the only fully recognised member of the UN not to have recognised. There are two as yet internationally unrecognised states that have not signed and cannot do so without universal recognition. Therefore, the CRC is the most successful convention of all time in terms of accession. In terms of its usefulness here, all member states of the EU should be treated equally, thus not only UK nationals in EU states, but also from the EU in the UK.
The CRC requires policy and lawmakers to ensure that the best interests of children are the primary consideration in all actions that may affect them. It covers aspects related to the promotion and protection of children by giving them the rights to:
- non-discrimination (Article 2)
- consideration of the best interests of the child in policy-making (Article 3)
- right to life (Article 6)
- right to grow up in a family setting (Articles 5, 9 and 18)
- get back together as a family where separation has occurred (Article 10)
- right to be heard and participation in civil society (Article 12)
- rights to other forms of participation and (Articles 13, 14 and 15)
- protection from abuse and neglect (Article 19)
- right to alternative care for out-of-home children and adoption (Articles 20 and 21)
- protection from torture and exploitation (Articles 36 and 37)
- right to a fair trial in the judicial context (Article 40)
- freedom of expression, thought, conscience and religion (Articles 13 and 14)
- right to the enjoyment of the highest attainable standard of health (Article 24)
- right to education (Articles 28 and 29)
All EU member states have ratified the CRC but it is not a state party itself. The European Commission has stated that the ‘standards and principles of the CRC must continue to guide EU policies and actions that have an impact on the rights of the child’. Furthermore, the CJEU has expressly recognised the need to respect children’s rights and requires EU law to take due account of the CRC. All EU member states have signed the CRCs two additional Optional Protocols on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict, but the EU has not signed as a single body.
Children’s human rights laws we must include in the wider picture
The problem the CRC is that the UN has no enforcing body or force. There is a Committee on the Rights of the Child that observes implementation and asks for a periodic report by each state party every five years, which they review, seek expert advice on and then report. During drafting, Poland proposed a supervision mechanism that would require each country to submit regular reports to the UN’s Economic and Social Council. This proposal was not accepted as originally presented, but discussions started on the role of the Committee for the Rights on the Child. Article 43 of the CRC provides the composition and the functioning of the Committee. It is an independent and international body, which supervises the application of the CRC by the states party and is made up of 18 members from different countries and legal systems who are all of ‘high moral standing’ and experts in the field of human rights or related areas. Not all of the committee are in fact at all human rights specialists as stipulated but often have backgrounds in child protection, education and fields in which human rights have at least some bearing. Although members are nominated and elected by states party to the CRC, Committee members act in a personal capacity. They do not represent their countries’ governments or any other organisation to which they might belong. Members are elected for a four year term and can be re-elected if nominated again. There are several advisers to the Committee; at least one of them is usually from the UK. Several UK representatives have served terms on the Committee. Thus far the most successful and outstanding chairs have been from EU member states, two of them are still ‘advising’, both are old friends of mine. The Committee, whilst having no policing or enforcing powers, is at least influential. In 2014, for the first time, it joined forces with another committee whose remit is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to release a comprehensive interpretation of the obligations of States to prevent and eliminate harmful practices done to women and girls. That has enormous potential in dealing with problems Brexit may cause.
The Committee’s reports are ostensibly for the UN Secretary General and the General Assembly, but with very few exceptions they have never been high profile at all. They are rarely submitted on time and the report by the Committee with its comments tends to sit in the queue until a session of the committee in Geneva discusses the country report with representatives of and experts on and from the country being examined. The last UK report by the Committee came through last year, 2016, very critical as it was; now 2021 would be the next, if submitted on time, with the details collected from late 2019 to 2021. That means that in effect no effects of Brexit would show, assuming it all ran on time, until 2026/27. As said, there is no enforcing body, but being a binding treaty that ratification obliges countries to adopt into their laws, anything that has to be pursued goes through that country’s courts and, as yet it appears not to have happened, on to the European Court of Human Rights (ECtHR) as the final instance here in Europe. There are other legal instruments such as the Convention on the Rights of Persons with Disabilities (CRPD), likewise with its own UN committee. The UK does not have a good track record in application of the CRC since there are many discrepancies where particular articles should have been integrated into law but no apparent action has been taken to do that. Likewise, if one reads the reports it is noticeable that there is a great deal of excuse making about points criticised by the Committee rather than action to remedy faults. They tend to show up again in subsequent reports to the first when attention was drawn to them and Committee follow up finds no positive response and change in line with its critical and guiding comments. Needless to say, the same applies in one form or another throughout the EU, some countries are worse than others; the UK is not the worst. Since this is an EU wide overview, I recommend looking at country reports to see where discrepancies can be found. In all legal arguments that may arise and certainly in campaigning for the protection of children’s human rights and protections they are important assets.
Other UN Conventions also contain provisions relevant to the protection of children’s rights. For example, Article 7 of the CRPD refers specifically to children with disabilities; requiring states party to adopt measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children, to have the best interests of the child as a primary consideration in all actions concerning children with disabilities, and to ensure that children with disabilities have the right to express their views freely on all matters affecting them, on an equal basis with other children, to be provided with disability and age appropriate assistance to realise that right. CEDAW also explicitly takes into account the rights of children in a number of provisions related to family rights and childcare. For example, Article 16 provides for the rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children, taking into account the interests of the children.
There is then the Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention, which is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH) that provides an swift method of returning a child internationally abducted by a parent from one member country to another. There is also the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption which is an international agreement to safeguard inter-country adoptions. Neither has an enforcing body, so only national courts can deal with cases, because they are considered private international law, so the ECtHR would be difficult to use, but not impossible if bona fide human rights elements could be proven in national courts without a decision in the complainant’s favour, thus taking the case through all appeal stages.
There is also the Council of Europe Convention on Action against Trafficking in Human Beings that was adopted by the Committee of Ministers of the Council of Europe. There is also the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, UK signed in 2005 but has not yet ratified, so as yet no action is possible, but all other 27 member states of the EU are among the 42 states party. Although specifically designed for member states of the Council of Europe, it is open to accession by any state in the world; however, thus far it has not been signed or ratified by any state that is not a member of the Council of Europe.
The EU also has its own Charter of fundamental rights of the European Union (CFREU) consisting of 54 articles in line with international human rights standards and very much reflecting the sentiments of the Universal Declaration of Human Rights (UDHR). Although not specific to children, they are very much included in any use of the CFREU.
There are other lesser treaties but nothing actually protects family unity, reunification or other preventive and protective laws that could keep families together.
Most conventions have a foundation of one kind or another in the UDHR. It must always be borne in mind that conventions are binding on states party but declarations are not. As the word declaration implies, they are statements of intent and principle, but not international law. The majority of both are divided into articles that address particular issues, in many cases those articles linking conventions and citing declarations, which will be a large part of what follows.
Children’s human rights laws and the EU: children and families
The EU has no legal powers to change the content and application of domestic family law but it has enacted procedural rules that ensure family related decisions made in the UK can be automatically recognised and implemented in other EU countries. Having those rules ensures a degree of assurance for families who move between different EU states, thus prevents parents and other legal carers avoiding obligations by changing countries. EU law also provides for public law decisions that protect children that can be enforced in countries of which the child is not a national. The real advantage of EU law is that rules across member states enable family law proceedings, that include living arrangements for children where prime carers are in different countries, being treated in reasonable uniform manner. EU Regulation 2201/2003 (Brussels II bis) guarantees that decisions that affect are automatically recognised and enforced in other EU countries. For instance, when a parent or carer takes a child to another EU country without the consent of the other parent or any another carer, a parent or carer can speedily ensure judgments of any particular court is enforced in other EU countries. This places particular emphasis on upholding the best interests of children, as described in Article 3 CRC (Best interests of the child) and also provides that decisions will only be recognised and enforced if the child who is considered to have capacity has been given the opportunity to be heard in conformity with Article 4 (Protection of rights), Article 7 (Registration, name, nationality, care), Article 8 (Preservation of identity), Article 9 (Separation from parents), Article 10 (Family reunification), Article 12 (Respect for the views of the child), Article 18 (Parental responsibilities; state assistance) and Article 20 (Children deprived of family environment) CRC. The EU law is at present being gradually amended so that it will further reinforce the rights of children in international family proceedings. There is also a EU Maintenance Regulation that provides arrangements for child maintenance that at some time in the foreseeable future will be automatically applicable in any other EU state to which either of the parents/carers and/or child move. Throughout, thus far, although conventions, declarations and national laws often refer specifically to parents, I have included carers. When doing so I mainly mean legally appointed and recognised carers who may be family members such as grandparents, adult siblings and so forth or foster parents, legal guardians and, under certain circumstances even a guardian ad litem whilst looking at a child’s situation, but does not exclude those who have been given charge of children without legal recognition where the approval and consent of both parents and the child/children are given.
Of course, there are potential problems where parents are nationals of two different EU member states, Brexit thus not only affecting those where a parent is a UK citizen but also where two parents are EU citizens from the same or different countries but one remains in the UK. Thus, where, for instance, a court awards allocation of shared custody, despite Articles 9 and 10 CRC supporting a court decision, new immigration regulations may cause cross border problems. There may not simply be difficulty in entering the UK or a UK national child going into an EU state, but also in terms of recognition of legal decisions, how enforcement, oversight and supervision function amongst other as yet unknowable issues.
Child protection has been fitted into in EU free movement rules that have enabled the mobility of both EU nationals and goods between the member states. Directive 2004/38/EU on free movement allows equal access for children of EU migrant workers to education, health, employment once of working ages and other provisions on same basis as nationals. Free movement rules expressly protect migrant children against expulsion from a host state, including where it would otherwise be defensible on grounds of public policy or security. The main intent is to protect children’s welfare by preventing any unnecessary separation from their family in the host state. Likewise, the regulations governing free movement of goods between the member states do not contain any explicit references to the protection of children but allows restrictions to be imposed on imports or exports on grounds of public policy or security and for the protection of health and life of human beings without being age group specific. Therefore, under EU law, nationals of member states and family members, including children under the age of 21 years (although they have achieved the age of majority) or otherwise dependent, for instance supported students or disabled children, enjoy the present freedom of movement within the EU. Children of EU citizens are entitled to have access to public and private education on exactly the same basis as nationals and according to laws making education compulsory to set ages and levels. They normally have the right to language classes both in their mother tongue and in the language of the country in which they are living provided free of charges. All of them are entitled to access other services including health care, employment, housing and transport on exactly the same terms as nationals. They may have access to family benefits that includes social security, child tax credits and other benefits provided specifically for children on the same basis as nationals. The CJEU recently decided that EU migrants may only claim benefits from host states when the can prove the ‘right to reside’ there. Those who do not pass the ‘right to reside’ test are no longer entitled to benefits although if a state decides to continue to provide them there is no obligation for them to cease to do so. Children of migrants in need of support that is not part of welfare provision will almost certainly no longer have freedom of movement provisions unless special arrangements are put in place by individual countries. Therefore EU migrants to and from the UK and UK migrants to EU countries are likely to be subject to more rigid domestic immigration laws on third country nationals. Thus, they will inevitably no longer benefit from automatic rights of entry and residence, have equal access to employment and equal pay when they reach working age and parents or carers may no longer be able to claim benefits even when they are economically active. Access to compulsory education in member states of the EU will still apply to UK children although it is likely that private and further/higher education will entail higher fees than those paid by nationals.
Children’s human rights laws and the EU: forced migrant children
There is another area of particular concern that has been part of the background of Brexit which is the impact on forced migrant children. In line with internationally agreed and accepted definitions, forced migrants include asylum seekers, refugees or trafficked persons who are forced to leave their country of origin due to fear of persecution, war, famine and acute poverty. EU law defines persons under 18 in this situation as particularly vulnerable. EU law does not entirely establish any kind of consensus application of national immigration laws, but imposes minimum, harmonised standards that describe the entry into states, recognition, acceptance, residence and treatment of forced migrants. These legal instruments give special protection to children, particularly to unaccompanied children requiring all member states to act in their best interests (for instance, Article 3 CRC). Most forced migrant children are from countries outside the EU thus cannot enjoy the same rights as nationals of member states. They have the right to claim asylum and to international protection as asylum seekers and refugees with also the right to legal representation, appropriate care and accommodation, with access education and health services. Those rights usually expire when they reach age18. The UK has not adopted EU law entitling immigrant children to reunite with their family members in the UK. Furthermore, the EU Dublin Regulation stipulates that all asylum seekers, which included children, register a claim for asylum in the first EU country they arrive in. EU states may request that the UK takes in asylum seekers, which also includes unaccompanied children who have family members already living in the UK, they could be reunited with. Thus far only few children have been accepted.
This is contrary to the commitment the UK and other EU member states denying entry to unaccompanied children with families in other member states. Article 9 CRC states that children have the right to live with their parent(s) unless it is bad for them. Children whose parents do not live together have the right to stay in contact with both parents, unless this might cause any kind of harm to the child. Article 10 states that families whose members live in different countries should be allowed to move between those countries so that parents and children can stay in contact, or get back together as a family. Article 20 CRC stipulates that children who cannot be looked after by their own family have a right to special care and must be looked after properly, by people who respect their ethnic group, religion, culture and language. Here the CRC is so very specific that it may, for example, be difficult to argue for reunification with alternative carers, however using Article 10 CRC where they are family members rather than actual parents being reunited is a responsibility borne by the receiving state having ratified the CRC. This, as evidence from unaccompanied children found in the area in and around Calais with family in the UK is not always the case; likewise other EU countries would appear to have prevented reunification despite there being somewhat less evidence.
It is important to note that EU rules relating to forced migrant children conform to international law (1951 Refugee Convention and CRC) by which the UK continues to be bound. UK immigration law will still have to uphold the standards of protection and entitlement contained in these instruments following Brexit. That said the UK would have to renegotiate or replace specific EU laws relating to minimum reception conditions as well as the procedural and substantive EU rules relating to care, accommodation, education, health and legal representation. The UK would additionally have to renegotiate its participation in the EU Dublin Regulation. If not, it is to be expected that the will see an increase in asylum claims since they will no longer be protected by rules that prevent refugees and asylum seekers lodging claims in member states other than where they first arrive. Furthermore, the UK would probably cease to benefit from existing EU support and funding for resettlement, training, research and data collection, law enforcement and intelligence sharing on immigration topics. In fact, the UK would become isolated because of its geographical position as a group of islands.
Children’s human rights laws and the EU: other options and institutions
There are, on the other hand, other international legal instruments that should still apply to the UK after Brexit that currently apply to both EU and non-EU countries. For example, the Hague Convention on Child Abduction applies where a parent or carer illicitly takes a child to another country rather than just in the case of third parties who have no right to remove a child from their country of residence. In the case of the UK, after Brexit it would probably be most desirable to make bilateral agreements on family law that reflect current EU legislation that would, of course, take a good amount of time and effort to set. It would be advantageous to retain EU law since it places more emphasis on children’s rights and is both quicker and simpler to apply. To give one example, the Brussels II Regulation has a six week deadline for dealing child abduction claims, thus decisions are reached quicker and at lower cost than through at least being between two possibly incompatible legal systems. Staying in the EU framework retains the primacy of children’s best interests and right to be heard (Articles 3 and 12 CRC) and would keep the UK in the European Judicial Network, thus information sharing between the courts dealing with family issues would continue.
The EU has introduced legislation so that all member states are obliged to implement regulations domestically, especially in terms of child protection that cross national borders such as the prevention and control of child abduction, forced migration, child trafficking and all forms of sexual exploitation. Despite that the UK appears to have a worsening situation at present. Early this year, the UK Government’s National Referral Mechanism (NRM) reported that more than a third of all potential victims of trafficking were aged 18 and under, with a majority of children drawn into exploitative labour, including forced criminality, such as cannabis cultivation. Trafficking also covers children moved within the UK, as well as moved into the country from abroad. The most prominent country of origin for trafficked children was the UK where in 2016 the biggest increase was the number reported to have been sexually exploited showed a 104.8% rise on 2015 statistics. So, bearing in mind that around one third of all ‘slaves’ using modern definitions when we look at total estimates the numbers suggested are unacceptable. Anti-Slavery International has recently claimed there are at least 13,000 of all ages; the Salvation Army, Barnados and ECPAT are expressing exasperation with the scale of the problem and about one week before this was written the independent anti-trafficking commissioner, Kevin Hyland, who has claimed that the “true number is in the tens of thousands”. Thus what he is saying is that the likely to be considerably higher than the current estimate of 13,000. More than half of all suspected victims referred to the national mechanism in 2016 were from Albania, Vietnam, the UK, Nigeria and China although, as already said, the majority of child trafficking victims identified were UK citizens and in 2015 Eurostat, Statistical Working Papers: Trafficking in Human Beings reported that 65% of all people trafficked with the EU are EU citizens.
There are several broad categories of exploitation linked to human trafficking that include sexual exploitation, forced labour, domestic servitude, organ harvesting, forced begging, illegal drug cultivation, organised theft, benefit fraud, forced marriage and illegal adoptions. Modern slavery is the term used by the UK and defined within the Modern Slavery Act 2015. The Act categorises offences of slavery, servitude and forced or compulsory labour and human trafficking as defined in the Palermo protocols adopted by the UN in 2000 to supplement the Convention against Transnational Organised Crime (the Palermo Convention) of the same year. The two most pertinent of the three protocols are the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children and the Protocol against the Smuggling of Migrants by Land, Sea and Air. In 2001 the then European Community signed the UN Convention and the Protocols. Furthermore, EU member states as members of the Council of Europe are required to ratify the Convention on Actions against Trafficking in Human Beings. In the UK the Modern Slavery Human Trafficking Unit (MSHTU) is the multi-agency organisation part of the National Crime Agency (NCA) that collaborates with partners including police forces, the Home Office and other government departments, the UK Border Force and UK Immigration Enforcement, the Gangmasters Labour Abuse Authority (GLAA), international agencies, non-governmental organisations (NGOs) and many charitable and voluntary expert groups.
Marilyn Croser, director of the Core Coalition, also stated that it is up to the government to enforce legislation passed to tackle modern slavery in corporate supply chains. This means controlling and prohibiting the importation of commodities made by slave and bonded labour which frequently includes large percentages of children. Media reports of fashion goods, cocoa and rubber among the commodities imported into Europe by large, well known companies are common.
The fear in the voluntary sector is that should the cooperation that exists in the EU end with Brexit that the already deteriorating situation in the UK that includes a large proportion of children or goods made by children will worsen. Since efforts to prevent people being trafficked to the UK through the EU or indeed UK children to and through EU member states are already critical any risk of this worsening adds to the questions relating to children’s human rights addressed here.
The human rights of children are also protected during criminal proceedings, irrespective of being victims, accused alleged offenders or a material witness whose evidence might put them at risk. This all has to be renegotiated or replaced by UK law and bilateral agreements as a result of Brexit. At present where there are legal obligations, they are dependent on tight and efficient infrastructures that facilitate multinational collection and exchange of information. The EU set up Eurojust as a cooperative judicial body that is responsible for coordination of investigations, prosecutions and exchanges of both details of convictions and wherever desirable the transfer of convicted persons to other states where further investigations and/or prosecutions and the possibility of convicted persons being transferred to their home country. Europol cooperates to investigate and combat organised crime involving children. An example of their work is the European Cybercrime Centre that provides operational support for member states including threat assessments of online child sexual abuse. There is also the well known European Arrest Warrant that provides fast track extradition procedures for securing the arrest and return of alleged offenders to face charges where an offence has allegedly taken place and is now frequently used for the investigation of, search for and arrest of persons suspected of crimes against children. The ECRIS (European Criminal Records Information System) database links national criminal records on those convicted of offences involving children so that they can be efficiently exchanged between Member States, which also helps prevent people convicted of offences against children from securing employment with children throughout the EU. The UK will possibly no longer have access to these support mechanisms as a result of Brexit and similarly the EU would have limited or no access to information held in the UK, thus fugitives from EU states could hide in the UK to avoid prosecution.
Children’s human rights laws and the EU: children and work
Children’s work is another complicated area that needs to be taken into account. Firstly we need to consider wider legislation by beginning with the International Labour Organisation (ILO) conventions that bear a great deal of influence on this topic worldwide rather than just in the EU or UK. There is ILO Convention 138, the Minimum Age Convention, (Convention concerning Minimum Age for Admission to Employment, 1973). That has been ratified by 170 nations worldwide with ages 15 and 16 throughout the EU. There is also ILO Convention 182, the Worst Forms of Child Labour Convention, 1999, with 181 ratifications. These are reflected in Article 32 CRC that demands recognition of the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. All domestic children’s work in EU member states takes all three into account. The EU has adopted minimum requirements for the protection of young workers (under 18 years of age) and their health and safety at work. It also outlaws child labour.
The EU Directive on the protection of young people at work (Council Directive 94/33/EC of 22 June 1994 on the protection of young people at work) insists that member states are obliged to prohibit the employment of children (that is to say, those under age 15 or still in full time compulsory education). There are exceptions that have been made possible for cultural, artistic, sports and advertising activities as well as for certain training contracts and particular kinds of light work by those aged at least 13 or 14 years. The employment of young people must be strictly controlled and protected under the conditions provided for in the Directive. Thus, the EU introduced binding law in the early 1990s laying down minimum conditions for the protection of children at work. That law, now part of UK domestic law (Part II, Children and Young Persons Act 1933), prohibits children from working at all if they are in fulltime compulsory schooling. Exceptions are made for over 14s to engage in occasional or short term work involving domestic service in a private household or that which is not regarded to be harmful, damaging or dangerous to young people. Younger children are allowed to work in cultural, artistic, sporting or advertising activities with prior authorisation by the competent authorities. EU law also sets the minimum health and safety standards for the protection of children at work places, also part of the UK legal framework (see for example section 19 of the Management of Health and Safety at Work Regulations 1999 relating to England and Wales. Besides the EU laws targeting child workers specifically, children benefit from general EU employment equality laws either directly as workers in their own right or indirectly as children of employed parents or carers. Thus, the EU pregnancy directive gives women the right to attend antenatal appointments during working hours on full pay and at least 14 weeks maternity leave before and/or after childbirth. This includes at least two weeks leave before and/or after childbirth. This law was put in place to prohibit dismissal of girls or women who are pregnant and/or on maternity leave with the exception of in unusual circumstances that are not connected with pregnancy/maternity. The EU Parental Leave Directive sets out minimum requirements on parental leave for both male and female workers following the birth or adoption of a child, entitling new parents to take at least four months leave. On completion of that leave, they have the right to return to the same job or at least the equivalent or a similar post that is consistent with their employment contract or relationship. Workers also have the right to request adjustment of working hours for a set period. These regulations were developed with adult workers in mind but there is reason why workers under the age of 18 may be prevented from benefiting directly from them, principally because they are likewise applicable to those who work part time or in training. In reality children tend not to benefit from employment equality law because they are most likely to be employed on a casual basis, sometimes on zero hours contracts, which come with extremely limited employment rights.
After Brexit, the UK would be free to make changes to any domestic law or policy that includes EU employment equality laws. This would have particularly have serious consequences for the children of workers affected, potentially negatively affecting child poverty rates and reducing the ability of one or both parents/carers to look after them. These would deprive children of some of the basic human rights.
Children’s human rights laws and the EU: what the EU has achieved
To fully appreciate the potential impact of Brexit on children’s rights and their protection it is vital to understand what precisely the EU has achieved and why its intervention in this area is both necessary and valuable. It is also important to appreciate the precise nature of EU child protection actions, legal or otherwise set out in the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: An EU Agenda for the Rights of the Child /Com/2011/0060. In broad terms, EU child protection and delivery of their rights are clearly defined by EU treaties and, in some areas, consist of legal obligations which all member states are obliged to implement at domestic level, especially those child protection and rights issues already outlined with cross border elements that include family reunification, separation from parents or carers, child trafficking, forced migration, all forms of physical and mental abuse and sexual exploitation. In some cases the emphasis is placed on protection in a more conventional sense than expressed as protection of and including rights. However, rights are always included as part of the sometimes inadequately phrased provisions. The EU offers, for instance, support where member states are developing their child protection systems, especially family law and criminal justice. These reflect the inability of some member states to deal with some of the most despicable forms of child abuse and exploitation alone but to be part of a supranational response to what are generally continent wide phenomena. The EU has developed a set of binding laws with the intent of particularly combating sexual exploitation (Article 79(2)(d) Treaty on the Functioning of the European Union (TFEU)), human trafficking ( Article 83(1) TFEU), measures for identifying perpetrators and victims of sexual exploitation and trafficking and enabling the exchange of information between the relevant authorities on convicted offenders (Articles 82-89 TFEU). The EU also regulates child protection issues in the context of broader policy areas that include cross border family law, there is an EU Victims Directive establishing minimum standards on the rights, support and protection of victims of crime, including particular protective provisions for child victims and Directive 2016/800/EU on procedural protection for children who are suspects or accused persons in criminal proceedings. The UK has opted out of Directive 2016/800/EU.
Children’s human rights laws and the EU: child abuse and sexual exploitation
There are binding EU laws relevant to child protection of which key instruments include Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography that harmonises in the region of initially 20 criminal offences against children, introducing a wide-ranging measures to address the problem of child sexual abuse, exploitation and pornographic images of children. It significantly develops provisions to support child victims of sexual abuse and exploitation that place an obligation on member states to provide assistance, support and protection that take into account the best interests and protection of children from all forms of violence (Articles 3 and 19 CRC, Article 18.1 Directive 2011/92/EU ). Children’s right to be heard is specifically addressed in the context of establishing suitable actions to assist and support victims, including measures taken in the best interest of the child on the basis of an sufficient appraisal of individual cases that take account of a child’s views, needs and concerns (Articles 18.1 and 19.3 Directive 2011/92/EU, reflecting Article 3CRC). This EU Directive has consequently made a significant contribution towards bringing EU laws in line with the CRC and the Optional Protocol on the sale of children, child prostitution and child pornography. The provisions of Directive 2011/92/EU reflect the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention) also conforms to the Council of Europe Guidelines on Child-Friendly Justice. It also takes into account General Comment No 13 of the Committee on the Rights of the Child and covers a number of elements that contribute towards the development of child protection systems that extend beyond providing a legal framework for the prohibition and acknowledgement of sexual abuse and exploitation, thus also protecting the rights of child victims. The UK originally opted out of the Directive because the UK already felt it complied with most of the provisions in the draft version. It did later choose to opt in to the Directive, which was accepted by the European Commission in 2011. Not all provisions were incorporated into UK domestic law so that, for instance the obligation to provide legal guardianship for child victims of trafficking as per Article 14 has been implemented in Scotland, proposed and pending implementation in Northern Ireland, but not in England and Wales. It is not so much that by leaving the EU these provisions will cease to exist but the assured international exchange of information and cooperation could be hindered, thus depriving children of their right to unconditional and instant protection.
The CJEU recognised the importance of the protection of children and their rights through its decisions by basing relevant judgments on interpretation and application of that referred to the CFREU even before it entered into force in 2000, the CRC, the International Covenant on Civil and Political Rights, but also in accordance with member states’ rights and responsibilities to take necessary measures for the protection of young persons to conform to a considerable number of EU legal instruments, some of them listed toward the end of this paper. The CJEU stated that ‘the protection of the child is a legitimate interest which, in principle, justifies a restriction on a fundamental freedom guaranteed by the EC Treaty, such as the free movement of goods’. The European Forum for the Rights of the Child (EFRC) was set up as a permanent group following the adoption of the European Commission Communication ‘Towards an EU Strategy on the Rights of the Child’ in 2006. It has met since 2007 and issued reports each year that promote children’s rights in the EU’s internal and external actions. It acts an advisory body for EU institutions and provides a platform for the exchange of information and convenes a permanent intergovernmental group l’Europe de l’Enfance, which is part of the inter-institutional European Network of National Observatories on Childhood (ChildONEurope) [I am still a member of the Swansea based Wales Observatory on Children’s Rights], UN agencies, the Council of Europe, civil society and children to contribute to the design and monitoring of EU actions concerning children and their rights in all contexts. It is one of the institutions of the EU whose guidance may be extremely useful in the event of Brexit going through and with it one of the foundations of children’s rights throughout Europe.
To sum up, it has to be borne in mind at all times that the outcome of Brexit is not simply a one way matter in terms of the protection of children and their rights. Children remaining in the EU area who are UK nationals born or registered there, although born in EU member states, and young EU nationals in the UK all potentially affected. There are far more permutations than have been examined and described here simply because of the inclusion of, for instance, parents from two EU member states who have lived long enough in the UK to have met, formed a partnership and had a child or children. By place of birth those children may not, in theory and in practice, share a common nationality. Brexit could entirely pull such families apart, especially where older children are legally old enough to live independently and are able to remain in the UK. Similarly, where UK citizens have been in relationships in EU countries some but not all of their children might be single but of different nationality whilst in the same family another may have dual nationality. Family unity is probably the greatest risk here.
The inclusion of sexual abuse and exploitation is also a key topic since it also possibly comes together with abduction and trafficking. There have been instances of children taken from mainland states who have been discovered working as prostitutes in the UK and, it is suspected, have taken part in pornographic films and photography. Thus, since those are broadly speaking illicit employment, they also sit beside underage work generally and the lack of regulation in many sectors that the EU has written directives to attempt to control and stamp. I am writing from the point of view of somebody who has worked in areas that have included child labour for many years and do not support the total elimination objectives of the EU, led by the ILO and other UN agencies since that is sometimes rather unjust and unnecessary. However, the basic principles are very sound. In all senses, all forms of illicit and physically, mentally and morally hazardous work could gain the advantage of less oversight by being outside the EU, especially where children and their parents may need to go ‘underground’ in order to avoid being made to leave the UK or simply deported.
The immigrant topic has been one of the main reasons widespread support for Brexit arose. It is unlikely that children were given as much consideration as adult migrants in the UK, nonetheless they are equally impacted. Being a two way matter rather than simply regarding the UK, the situation of UK children in the EU is less likely to be as serious but cannot be excluded.
The CFREU will still be valid across the 27 member states, apply to all children but after leaving the EU the UK is unlikely to remain in the EFRC, therefore it is likely that an extensively Europe wide policy on children’s rights will remain in place.
By then potentially losing the possibility of using the CJEU to adjudicate in necessary cases and the possibility that in the longer term the UK may still consider leaving the Council of Europe’s European Convention on Human Rights (ECHR), although the CRC will still be in place children and their representatives would lose the ability to seek judicial decision on possible breaches of their rights.
Furthermore, it is not excluded that children who are UK nationals living in EU states may need to seek judicial decisions that can only be pursued by those courts and where, for instance, Article 9 CRC that gives children the right to live with their parent(s), but whose parents who are respective a UK and an EU national do not or may be prevented from living together, have the right to stay in contact with both parents, therefore need a legal decision to support that.
One of the biggest problems is that Brexit takes the UK out of the framework of rights the EU has put in place for children. Whilst all rights are more or less in line with the principles set out in the UDHR and conform to the CRC, in fact cross border actions to protect those rights will be undermined. The UN has no enforcement agency or court through which cases following breaches of children’s human rights can be pursued. It is therefore only possible, and as yet untested, through the ECHR. That is a slow process that requires all instances of national courts be exhausted before a final appeal can go forward to the ECtHR, where it is necessary.
Of course, it may be that the UK adopts all of the EU’s principles, however the record that final reports on the periodic report by the UK to the Committee on the Rights of the Child tend to show that despite 27 years of the CRC accession there are still clearly breaches of children’s rights and that without the support of the EU potentially more children’s human rights may be neglected, denied or breached.
On balance the situation of children in the UK would appear to be far more tenuous than those throughout the 27 remaining EU member states. It remains to be seen how individual countries respond, given that all retain their constitutional and legal systems alongside EU treaties and laws and thus have own interpretations of the CRC.
In some cases evidence already shows that despite almost universal ratification of the CRC it has had far less influence than was ever intended, thus sometimes not even interpretative versions of articles are applied. Nonetheless, the EU has legal instruments and directives, plus bodies such as the CJEU and EFRC, that will continue to observe the situation of rights and protections, will continue to follow the principles of the ECHR and therefore tend far more toward the positive than the UK where there is a greater risk of negative outcomes.
Perhaps the greatest concerns must be where family extends across borders with parents and legal carers separated, one of them in the UK and children whilst having or not other EU nationality prevented from having time equally, or even at all, between them. Lack of coordination where abducted and trafficked children are involved is worrisome at least, changing working standards and perhaps the need of people who go ‘underground’ increasing the numbers of children employed without regulation or protection and last but not least obstacles this may create in the realms of education, health and welfare that should be taken very seriously.
As yet this all speculation, a no deal situation or the UK pulling out of negotiations early and no period of transition create the situation in which these issues are most likely to become critical. The negotiators do not have a separate agenda for any age group, however it is always necessary to remember that children are still under the ‘control’ of adults, be they parents, carers or agents of state authority such as social workers or police officers. They have little or no input into negotiations, personally I would encourage coordination between children’s own organisations throughout the 28 EU member states, the networks of observatories, ombudsmen and forums to bring together a representative group of young people of different ages who would go to Brussels to meet the Brexit negotiators, present their situation in clear terms and thus put themselves on the agenda. From my point of view and from long years of experience I would be very happy and privileged to be part of such an effort and feel very strongly that all groups involved in efforts to prevent or reduce the effects of Brexit should be involved.
This is a list of some of the directives that relate to children that gives details of areas touched above and includes:
- Directive 2004/38 (free movement – equal access for children of EU migrant workers to education, health, work and other services on the same basis as nationals).
- Directive 94/33/EC (young workers, now often referred to as the EU Young Workers’ Directive – imposes health and safety conditions for young people in the work place).
- Reception Conditions Directive (Directive 2003/9/EC; amended version: Directive 2013/33).
- Refugee Procedures Directive (Directive 2005/85/EC; amended version Directive 2013/32).
- Dublin III Regulation (604/2013 to determine which MS should examine an asylum application).
- Family Reunification Directive (Directive 2003/86/EC).
- Qualification Directive 2004/83/EC (amended version Directive 2011/95).
- Temporary Protection Directive (Directive 2001/55/EC).
- Returns Directive (Directive 2008/115/EC).
- Trafficking Directive (Directive (2011/36/EU).
- Victims Directive (Directive (2012/29/EU).
- Child Suspects Directive (Directive 2016/800).
- Presumption of Children’s Innocence Directive (2016/343)
- Directive 2000/31 (electronic commerce)