ࡱ> ceb9 ibjbj%~telJJJJJJJ^ 8 $^Rt  "@ @ @ @ @ @ $ "J@ @ @ @ @  JJ@ @  @ J@ J@  @   V @JJ@  #E^L M "0RYx# "# ^^JJJJInvestments and Citizenship: Towards a Transdiciplinary Dialogue on Child and Youth Rights Brock University (St. Catharines, Canada) July 19-21, 2006 The implementation of the CRC: challenges for Trans-disciplinary Approach Jaap E. Doek Chairperson of the UN Committee on the Rights of the Child 1. Introduction The implementation of human rights is often perceived as a matter of law. Legislative measures are or should to be taken to fully recognize and respect human rights of every citizen and where appropriate, specific measures are/should be taken for especially vulnerable groups like children, women, migrant workers and their families and persons with disabilities (an Ad-Hoc Committee of the UN is drafting a Convention on the rights of persons with disabilities). In addition legislative measures are taken to ensure the effective implementation of human rights including specific provisions in case of violation of human rights (complaint procedures and other remedies, independent monitoring by national human rights institutions, ombudspersons or commissioners). This perception of human rights also applies to the Convention on the Rights of the Child but, despite the fact that this perception is not wrong, it is only part of the various aspects of the implementation of childrens rights. This implementation requires not only the involvement of the legal professionals but equally the involvement of child psychologists and psychiatrists, paediatricians, social workers and other professionals. In short: implementation of childrens rights has to be based on/supported by a trans-disciplinary approach, an approach that transcends the borders of one discipline. Based on the Committees experiences and activities I will illustrate some aspects trans-disciplinary approach and the challenges of this approach. It seems to be appropriate to make a distinction between what I would call programmatic implementation of the CRC, that is implementation via legislation, policies and programmes at the general (national) level and the individual implementation, that is the implementation of rights for an individual child. Finally and in order to avoid misunderstandings some introductory observations: - I do not have a definition of trans-disciplinary and it may differ from interdisciplinary (1) but in my opinion a trans-disciplinary approach has to result in inter-disciplinary cooperation. A trans-disciplinary dialogue is not a goal in itself but an instrument in the establishment of a trans-/inter-disciplinary implementation of childrens and youth rights; - although inter-disciplinary is regular used as an adjective (e.g. Inter-disciplinary centre for the family (or: for youth) or in titles of articles in academic journals, it is not easy to find an article (or book) that elaborates on the nature/content of inter-disciplinary approach of the implementation of childrens and youth rights (I did not find one that satisfied me) let alone the trans-disciplinary dialogue (but see footnote 1). In particular I could not find an elaboration of the specifics and challenges of a trans-disciplinary dialogue between the legal professionals and the other professionals involved in the promotion and realization of the rights of children and youth. 2. The programmatic implementation of the CRC and the trans-disciplinary dialogue The core activity of the UN Committee on the Rights of the Child (the CRC Committee) is monitoring the implementation of the CRC by the States that ratified this Convention (192 out of 194 States). In practice this monitoring is conducted as follows: States Parties regularly (first report within 2 years after ratification and thereafter every 5 years; art. 44 CRC) submit reports on the implementation of the CRC to the Committee. In addition reports are submitted by (inter)national NGOs and UN agencies such as UNICEF, UNESCO and WHO. These reports are reviewed and discussed with a delegation of the State Party in a dialogue during one day of the public meeting of the Committee (2). This dialogue results in so-called Concluding Observations with specific recommendations for further actions to be taken by the government of the State concerned. The first part of this dialogue is traditionally devoted to General Measures of implementation. This means that the Committee raises questions about what I would call the infrastructure necessary for effective and progressive implementation of the rights of the child. Issues considered are inter alia: legislative measures, national programmes and/or policies and projects for the elimination of labour, the prevention of and interventions in cases of abuse and neglect, (commercial) sexual exploitation and trafficking, budget allocations and the collection of data. It goes without saying that the gathering information on these issues involves a wide variety of professionals at the governmental but also at the non-governmental level such as legal professionals, health and educational professionals, economists and financial experts and statisticians. This applies in particular for the reporting process as such including the dialogue. But also the follow-up to the recommendations. The question remains whether and to what degree a trans-disciplinary dialogue is part of this progress. It is the Committees consistent opinion that the report on the implementation has to be the result of a participating process involving all the relevant governmental and non-governmental agencies and professionals. But from the report it is not clear whether this results in a trans-disciplinary dialogue between the different professionals involved, although it is often very likely (and sometimes clearly stated in the report) that the reporting generated inter-disciplinary cooperation. For instance: the gathering of information is done by governmental people with different disciplinary background and they have to cooperate and engage in discussions on the question which information is relevant and how it should be presented. I could elaborate more on this inter-disciplinary cooperation and dialogue but dont forget: even if the reporting has been a participatory process, it ultimately is a matter of the civil servants who prepare/draft the report under the political responsibility of the government. But there is another aspect of this review and monitoring process that is never discussed in details and that is the inter/trans- disciplinary cooperation/dialogue behind the legislative and other measures, the comprehensive national plan of action and/or specific programmes for the implementation of the CRC presented in the report. Why not? The practical answer: the Committee has six hours for a dialogue which should as much as possible cover all the articles of the CRC and it often happens that some topics do not get the in depth discussion they may deserve. In a perfect world the Committee would devote more than six hours for the dialogue with the delegation of a State Party. But the perfect world does not exist and the Committee has to operate and compromise within the possibilities it has. The formal answer: the CRC does not explicitly require that legislative and other measures and programmes should be based on a trans/inter-disciplinary dialogue. But all the above does not mean that such a dialogue is not important. On the contrary, the content of the provisions of the CRC is such that their implementation cannot be a matter of legal professionals only despite the fact that the CRC is an international Human Rights Treaty. Let me give you some examples - the drafting of a comprehensive law on child protection requires not only legislative skills of lawyers but also the input from social workers, child psychologists/psychiatrists, street corner workers, medical professionals such as paediatricians and general practitioners. For instance a trans/inter-disciplinary discussion is necessary to define child abuse as a reportable problem, about the need to introduce a mandatory reporting system, the conditions that could justify a child protective intervention in the family and the question which kind of treatment/alternative care is most effective depending on e.g. the nature of the abuse, the age of the child, the attitude/capacities of the parents; - the drafting of a national education policy that should include measures to promote mainstreaming of children with disabilities into regular primary and secondary education, should be the result of again a trans/inter-disciplinary dialogue between teaching professionals (e.g. what kind of additional training is needed for the integration of children with disabilities and what are the limitations of such integration), school social workers and psychologists e.g. to discuss measures to prevent drop-out, experts on teaching methods to discuss how the aims of education enshrined in art. 29 CRC can be achieved in the day-to-day education practice (3) and lawyers. Many more similar examples could be given e.g. regarding programmes or plans of action in the area of health care (the right of the child to the enjoyment of the highest attainable standard of health; art. 24 CRC) or with the aim to address economic exploitation (child labour) or (commercial) sexual exploitation and trafficking. For instance Female Genital Mutilations (FGM) cannot only be addressed by a strong prohibition in the criminal code but requires a dialogue with midwives and other health professionals, but also with community leaders and experts on traditional practices. The same can be said of the efforts to address commercial and sexual exploitation which also should involve employers organizations, trade unions, specialists in education, law enforcement specialists and therapists. And even when it comes to budget allocation, the involvement of various disciplines is needed to discuss what are adequate budgets for health, education and child protection. In short, it is clear that the programmatic implementation of the CRC both in terms of its development and in terms of actual implementation on the ground needs an ongoing trans/inter-disciplinary dialogue to be as effective as possible. Unfortunately and despite some good practices in this regard the reality is that this dialogue is often either very limited or completely lacking. There is not yet a culture of programmatic implementation of the CRC that is fully developed and executed on the basis of a trans-/inter-disciplinary dialogue. 3. The individual implementation of the CRC and trans-/interdisciplinary dialogue To avoid possible misunderstanding: the CRC Committee is not involved in individual cases. The CRC does not provide for the possibility to file a complaint on the violation of the rights of an individual child or a group of children. But the Committee can make recommendations on how individual cases should be dealt with. I think there is enough evidence to state that the trans-/inter-disciplinary dialogue in cases of individual implementation of the CRC is much more developed and practised than in the programmatic implementation. In many States Parties it is a common practice to involve e.g. psychologists and/or psychiatrists and social workers in individual cases of child protection and in decisions on custody and visitation rights. They interview the child and/or make an assessment of the parents capacities, put their findings in a report and submit this sometimes with an advice to the court/judge. But it has been and still is my experience as a judge that this practice can hardly be qualified as an inter-disciplinary dialogue. It regular happens that different disciplines submit their reports separately and without having had any discussion about the findings and the possible advice. The lawyer(s) of the parent(s) and/or the child may criticise the findings and the judge may raise questions but all that does not amount to a dialogue. But is a dialogue necessary/desirable? One may argue that the nature of these cases, given the often conflicting interests, hardly allows for a dialogue and it is left to the judge to decide on the conflict. But there is a growing trend to use mediation and/or family conferencing as a tool to find a solution for the problems/conflict in the best interest of the child. I welcome and support this trend because it can avoid the often likely escalation of a legal process, it promotes the idea that the responsibility for finding solutions rests with the parents and when appropriate, the wider (extended) family and allows for the development that is culturally sensitive, including the possibility to use traditional conflict resolving practices. Except for the role of the mediator it is not clear if and how an inter-disciplinary dialogue could/should support the mediation. There is not a practice/model for the involvement of other disciplines in the mediation if such involvement is even necessary. I am not an expert in mediation but to suggest that a mediator always requires an inter-disciplinary dialogue may go too far. I think the challenge is to develop guidelines for the role of an inter-disciplinary dialogue in cases in which mediation is applied. For instance, before a judge agrees with the proposal to try to solve the conflict(s) via mediation, he/she may like to have an advice on the feasibility of a mediation, particularly when the case is quite complex. He may invite two or more specialists to discuss and assess the complexity of the case and the usefulness of a mediator. The result of this inter-disciplinary dialogue will be submitted to the judge and may guide her/his decision to give the green light for a mediator. But also during the mediation process an inter-disciplinary dialogue e.g. on the basis of some interim results could be helpful to bring it to a successful completion. In that regard one observation as a warning: in the practice of a mediation process the child is mainly an object of care without clear rules for her/his participation in this process. For instance, in cases of custody and visitation after a divorce the mediator is only involving the parents with the assumption that they will inform and consult with the child(ren). As long as there are no clear rules for the childs participation in mediation, but even if they have been made, an inter-disciplinary dialogue in preparation of the mediation may also provide advice on the childs involvement. But if a mediator is not an option or if it fails, we are back to the legal process and my earlier remarks on specialist reports and the lack of a dialogue. I think it is a challenge for the individual implementation of the rights of the child to develop a practice in which the decision of a court/judge takes into account not just separate reports, but the results of trans-/inter-disciplinary dialogue in all the relevant aspects of the case. I would recommend to limit this dialogue not to civil law cases (custody, visitation, protection), but to use it also in cases of juvenile justice. The focus so far has been on the decision making process, but the role of a trans-/inter-disciplinary dialogue should be extended to the whole process of implementation of the decision. In this regard one could particularly think of the decision to place a child in alternative care such as foster care or childrens home/institution. A regular trans-/inter-disciplinary dialogue between all the professionals involved, and from time to time a not directly involved expert, is necessary to review such placement (art. 25 CRC). The periodic review is necessary to assess the degree to which the goals of the placement have been achieved and/or whether a return of the child to her/his family of origin is in best interest. There are many more individual cases in which a trans-disciplinary dialogue is needed in order to be able to take into account all relevant aspects of the implementation of the rights of the child. In this regard I can refer to cases of asylum seeking children (with parents or separated from them (4). Decision in that regard should not simply be limited to applying rules that apply for adults. It is necessary to take into account the vulnerability of children, the impact of violence against members of their family, the special needs of the child that cannot be met if the child is returned to the country of origin. All these and other aspects of the position of the asylum-seeking child should be assessed, after hearing of the child by well trained professionals and collection of all relevant data, in a dialogue between the different professionals involved such as staff of the immigration service, psychologist, social worker, legal representative of the child and an expert on the specific situations in the country of origin of the child. Similar observation can be made regarding children victims of armed conflict who often lost contact with their families and/or are internationally displaced (5) The key and guiding principle in all these and other individual cases is the best interest of the child. As ar, 3 CRC states: In all actions concerning children (.) the best interests of the child shall be a primary consideration. (6) It goes beyond the scope of this presentation to discuss in details the various aspects of the concept of best interests. A lot has been written about it (7) and I will limit myself to some observations. - article 3 represents a very significant extension of the principle of the best interests (all actions) which has and often in practice is limited to applications in cases of custody and child protection. The principle has been and is criticised for it indeterminacy. Efforts to develop criteria for the determination (of the content) of the best interests of the child are unavoidably value-laden and often there is no consensus of the values that should be taken into account. But at the same time, the CRC provides as Alston (1994, p. 19) rightly observed, the broad ethical or value framework that is often claimed to be the missing ingredient that would give a greater degree of certainty to the content of the best interests principle. It provides a carefully formulated and balanced statement of values to which 192 States Parties have subscribed. This is not to suggest that the CRC seeks to provide any definite statement of how individual childs best interests would best be served in a given situation; any such pretension would obviously be misleading. It does however provide a number of sign- posts capable of guiding those seeking to identify what is in the best interests of the child and excludes from the equation, by implication various other elements. Such signposts can be found in the preamble to the CRC e.g. the importance of the family as the natural environment for the childs growth and well-being and for full and harmonious development of the childs personality and that the child should be fully prepared to live an individual life in society. Various articles of the CRC also contain these signposts e.g. art. 5, recognizing respect for the childs evolving capacities; art. 8, respect for the right of the child to preserve her/his identity; art. 9, the principle of non-separation from parents and the right to maintain contact with the parents and/or family members (see also art. 37 under c), art. 12, the right to express views freely and the right to have those views taken into account; art. 18, the principle that both parents have common responsibilities for the upbringing of the child; art. 23, in particular for children with disabilities (but equally relevant for other children I would think) to enjoy a full and decent life in conditions that ensure dignity, promote self-reliance and facilitate the childs active participation in the community; art. 37, deprivation of liberty as a last resort and the shortest appropriate period of time and treatment in those cases with humanity and respect for the inherent dignity of the child and taking into account the needs of persons of her/his age; art. 40, the treatment of children in conflict with the law (juvenile delinquents) in a manner consistent with the promotion of the child sense of dignity and worth (.) and the desirability of promoting the childs reintegration and the childs assuming a constructive role in society. Although these and other signposts are important, it remains a challenge and requires a trans-/inter-disciplinary dialogue to determine what is in an individual case in the best interests of the child. In that dialogue adequate attention should be given to the childs right to express her/his views which should be given due weight in accordance with article 12 CRC and that right also applies to the (very) young children who are not (yet) able to communicate through the conventions of spoken and written language (8) In addition the dialogue should take fully into account that the child is a person with evolving capacities. In short: whatever the nature of a trans-/inter-disciplinary dialogue may be, it cannot be just a dialogue about the child but must be one that includes the child. What is needed to develop and implement a culture of inter-disciplinary dialogue that produces relevant trans/disciplinary results, not only for the development and implementation of laws and programmes (regarding childrens rights (the programmatic level), but also for respecting and implementing the rights of an individual child? It requires a change of attitudes and practices. In order to achieve the following measures (among others) should be taken: - an ongoing training of all relevant professionals as part of regular curricula and as part of in - service training to familiarize them with the content of the CRC, including the meaning and the opportunities for their activities. Traditionally this training is mono-disciplinary focussing on one group of professionals, e.g. training for social workers, for psychologists, police officers, judges and prosecutors. But for the holistic implementation of the CRC it is imperative that the training for inter-disciplinary opportunities (workshops/seminars etc.) e.g. for the presentation and discussion of individual cases in a group of members of different disciplinary background. The CRC Committee consistently recommends States Parties to support and promote such training. Bit should pay more attention to the need of developing, in the context of these trainings, a culture of inter-trans/disciplinary approach and dialogue; - professional organisations have to become more active and develop measures for their involvement in the drafting and implementation of laws, programmes and plans of action on childrens rights. Dont wait till the government is kind enough to invite you but try to establish a mandatory process of consultation that includes the organisation of inter-trans/disciplinary dialogues; - professional organisations should also promote and be involved in the evaluation of laws, programmes and plans of action on childrens rights to assess not only their professionals in that regard. In conclusion: to organize an inter-disciplinary dialogue that produces helpful, guiding and constructive trans/disciplinary results for the implementation of the right of the (individual) child is a major challenge for the various professional groups working with or for children. It is equally and perhaps even more challenging to produce results in an often (very) short period of time in individual cases. The implementation of the CRC is the best investment for the developing of full citizenship of children for today and to-morrow. A trans/inter-disciplinary dialogue can be an important instrument in this implementation process, both at programmatic and the individual level. NOTES 1. An internet search under trans-disciplinary provided a lot of info under inter-disciplinary but very little activities labelled as trans-disciplinary. But see for the concept of a trans/disciplinary approach in another area than human rights. 2. In preparation of this dialogue a pre-sessional working group meeting takes place about three months prior to the date of the dialogue. This is a closed meeting during which the Committee discusses with representatives of NGOs and UN agencies the information they submitted. See for more information Jutta Gras, Monitoring the Convention on the Rights of the Child. University of Helsinki 2001. 3. What this may entail is elaborated by the Committee in its General Comment No.1 (2001) on The Aims of Education (GC/CRC/2001/1) 4. See in this regard also the Committees General Comment No. 6 (2005) on Treatment of unaccompanied and separated children outside of their country of origin (GC/CRC/2005/6) 5. See in this regard e.g. Protection of Children During Armed Political Conflict: A Multidisciplinary Perspective, Charles W, Greenbaum, Philip Veerman and Naomi Bacon-Shnoor(eds); 2006 Intersentia Antwerp/Oxford. 6. See also art. 9: separation of the child from her/his parent only if necessary for the best interest of the child and personal and direct contact of the child with the parent except it is contrary to the childs best interest (see also art. 37 under c); art. 18 about responsibilities of parents: The best interests of the child will be their basic concern; art. 21 about adoption ensure that the best interests of the child shall be the paramount consideration 7. See e.g. The best interest of the Child. Reconciling Culture and Human Rights, Philip Alston (ed.) 1994 Clarendon Press Oxford. 8. For the implementation of the CRC for (very) young children see General Comment No. 7 (2005) of the CRC Committee published with background information: Implementing Child Rights in Early Childhood. A Guide to General Comment No. 7; 2006 Bernard van Leer Foundation, UNICEF and CRC Committee The Hague. PAGE  PAGE 9 .1>+!!-j-HHggtiui{i|i}iiiiiiiiii0JmHnHu0J j0JU >*mH sH >*mH sH 9\-.>?=/ c $,-tii !!$'j(*+--k-l-./T035D:<V>>AByF4HI0MSSUVX9\]^^`.a/a0a1a2a3a4a:a;a7b8bccLdMdddeeggg3h4hfigihiiijikiliminioipiqirisiti}i~iiiiiiih]h&`#$# 01h. 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