Why do people underestimate mature young people

Strengthening young people: Children's rights as an instrument of youth policy

Claudia Kittel, head of the UN Convention on the Rights of the Child monitoring unit at the German Institute for Human Rights

It has been more than 30 years since the General Assembly of the United Nations passed the Convention on the Rights of the Child (UN Convention on the Rights of the Child / UN-CRC) on November 20, 1989. [1] For children [2] - and in accordance with the provisions of Article 1 of the UN Convention on the Rights of the Child, this means all people who have not yet reached the age of 18 - a paradigm shift was enshrined in international law: children were recognized as rights holders and thus from the object of upbringing to subjects with their own rights.

The starting point for this was the unanimous statement that access to their human rights is fundamentally difficult for children due to their being a child and their special need for protection. As a result, children's rights have been clarified. [3]

196 states have since acceded to the UN Convention on the Rights of the Child as a binding treaty under international law. [4] In Germany, the convention has been in force since April 5, 1992. But despite its status as a simple federal law and direct applicability as domestic law, the UN Convention on the Rights of the Child is still an underestimated, often unknown and persistently ignored treaty in Germany. [5] This may be due to the fact that many of the contracting states - including Germany - underestimated the Convention on the Rights of the Child. Underestimated in the form that in the UN Convention on the Rights of the Child, in addition to the so-called protection and welfare rights, the participation rights of children were also explicitly laid down for the first time.

With regard to the rights of participation, two of the so-called basic principles of the UN Convention on the Rights of the Child, which reflect the emancipatory concept of the Convention, should be emphasized: Article 3, paragraph 1 of the UN CRC with the priority of the best interests of the child and Article 12 of the UN- CRC with the child's right to be heard and his or her opinion to be taken into account (participation). As can be seen in the so-called General Comments of the UN Committee on the Rights of the Child on these two articles, their content is closely interwoven. [6] Central to this is that Article 3 gives the contracting states precise guidelines for determining the best interests of the child. In contrast to the concept of the best interests of the child, which is used in the context of child protection, which is linked in particular to the averting of a risk to the child's welfare through state measures, the best interests of the child from Article 3 of the UN CRC is based on the idea that children of At the beginning of the "independent exercise of rights" should be authorized. [7]

According to the UN Committee, the primary consideration of the best interests of the child comprises three levels:

  1. It is a subjective right of children that applies as a benchmark for all government decisions,
  2. a rationale for legal interpretation and
  3. a procedural rule that stipulates that all government decisions that have an impact on children must be determined and documented transparently and comprehensibly (for later consideration). [8]

It should be emphasized that the determination of the best interests of the child is inextricably linked to the right to be heard and the opinion of children to be taken into account (participation) from Article 12 of the UN CRC. [9] The principle contained therein can be summarized in the form of an adaptation of the slogan of the autonomous disability movement, which emerged in the context of the negotiations for the creation of the UN Disability Rights Convention (2006): “Nothing about us, without us!” [10]: Nothing for or about Children without children.

And with a view to the requirements of Article 12 of the UN CRC, there is another point to be explained that was underestimated by many of the contracting states in the course of the ratification of the UN Convention on the Rights of the Child: Article 12 of the UN CRC comprises two paragraphs and in particular paragraph 1: " States parties guarantee the child, who is able to form his own opinion, the right to express such opinion freely on all matters concerning the child and shall take into account the opinion of the child appropriately and in accordance with his age and maturity. ”Contains a central starting point with regard to the emancipatory approach of the UN Convention on the Rights of the Child, which is still not implemented in Germany today. It is about the right of the child - as the right of an individual child, but also as the right of children as a group - to be heard and to take their opinion into account “in all matters affecting the child”. In its General Commentary on Article 12 of the UN CRC, the Committee expressly emphasizes that "matters" should be understood broadly and should in no way be restricted to areas determined by government agencies. [11] The child's right to be heard and his / her opinion taken into account in all court and administrative proceedings affecting the child are only specified in paragraph 2 of Article 12, whereby it is emphasized once again that this does not only mean court proceedings that affect the child directly concern, but also when a child is affected, for example by a court decision, such as the imprisonment of a parent. [12]

In view of these very far-reaching requirements of the UN Convention on the Rights of the Child, it is astonishing that the current debate in the governing coalition on including children's rights in the Basic Law leads to (it seems) insurmountable controversy at precisely this point. The wording proposed by Federal Minister Lambrecht, which has become known in the press, on which the departmental vote has not yet been completed and which therefore could not yet be passed on to the parliamentary debate as a ministerial draft, has the right to be heard and the child's opinion to be taken into account already reduced to Article 12 paragraph 2, i.e. to be heard in judicial and administrative proceedings. It thus lags significantly behind the existing guarantee content of the UN Convention on the Rights of the Child, the European Charter of Fundamental Rights and the case law of the Federal Constitutional Court. [13] The fact that even this proposal is still a source of controversy with regard to participation rights shows how necessary measures such as independent youth policy with its strategies and programs are at federal, state and local level. Necessary in such a way that, in addition to the legal basis, a clear commitment from a government or those responsible on site is required so that the implementation of the law is also guaranteed.

30 years ago, the convention provided a legal basis for a change in the “perception” of children, as advocated by reform pedagogues at the beginning of the 20th century. Today, in view of the developments in the specialist pedagogical discourse and - as we know from participatory childhood research - the changed coexistence of children and adults, for example in families, it is surprising that such emphasis is still needed by decision-makers.

The UN Convention on the Rights of the Child could serve as a "tailwind" for independent youth policy. This “tailwind” could consist of the attitude that there has long been a binding basis for Germany's obligation to respect, protect and guarantee the right of children and young people to be heard and their opinions to be taken into account. The other way around, the child rights discourse could learn from the independent youth policy and the possible effects of a youth strategy, for example. Learning in such a way that a clear commitment by the decision-makers can directly influence the legal reality and also the direct reality of life of children and young people. So if next year the federal government will discuss its state report, which was presented to the United Nations in April 2019, in a "constructive dialogue" with the representatives of the UN Committee on the Rights of the Child, then it would be very helpful if the committee were to conclude Recommendations to Germany that would recommend more far-reaching, comprehensive political measures to better enforce the rights of children and young people in Germany. Then - similar to the youth strategy - the diverse fields of action could be emphasized again in which children and young people are all too often still ignored. Even if, in view of three decades of the UN Convention on the Rights of the Child, it is a little sad that the “authorization” by adult decision-makers is still needed for the comprehensive participation of young people in social decisions, the many successes still give hope.

https://www.institut-fuer-menschenrechte.de


[2] Even if children and young people or underage young people would have to be spoken of in German in this case, the term child or children is used in the present text for reasons of legibility, with a few express exceptions.

[3] Cf. Dominik Bär / Hendrik Cremer, Children's Rights in the Basic Law. Strengthening children as bearers of human rights, p. 1, German Institute for Human Rights, Position No. 7, Berlin, 2016.

[4] Only the USA has only signed the UN Convention on the Rights of the Child, but not ratified it. Here it fails because of the parliamentary approval required for ratification. An overview of all states that have ratified the UN CRC is available at: https://indicators.ohchr.org/.

[5] Stefanie Schmal, Children's Rights Convention with Additional Protocols. Handkommentar, page 5, Baden-Baden, 2013 and Hendrik Cremer, The UN Convention on the Rights of the Child. Validity and applicability in Germany after the reservations have been withdrawn, German Institute for Human Rights, 2nd edition, Berlin, 2012.

[7] Cf. Lothar Krappmann, The legal capacity of the child to act - The UN Convention on the Rights of the Child from the point of view of Article 12 UN-CRPD, p.133, in: Aichele, Valentin (ed.), Human rights to equal recognition before the law. Article 12 of the UN Disability Rights Convention. Baden-Baden, 2013.

[8] Cf. Judith Feige / Stephan Gerbig, New thinking about the child's welfare. Determination of the best interests of the child based on children's rights, German Institute for Human Rights, UN-KRK Monitoring Center, Information No. 30, p. 2, Berlin, 2019

[9] UN Committee on the Rights of the Child, General Comment No. 14, item 41.

[10] Cf. Valentin Aichele, Eine Dekade UN Disability Rights Convention in Germany, in: From Politics and Contemporary History (APuZ) 69th year, 6-7 / 2019, p. 5, February 4, 2019.