On Tuesday, 16 April 2013, the Center for Children’s Rights in Amsterdam (CCRA) organised a conference at the Royal Netherlands Academy of Arts and Sciences, which had as its theme the “Rights of the Child in Theory and in Practice”. The conference was organised to mark the 40th anniversary of Dr Ph. E. Veerman. For forty years this remedial educationalist and health psychologist has been committed to championing children’s rights and improving the legal position of children at home and abroad.
The theme of the seminar, which was opened by Ms Dr. J.H. Graaf of the Children´s Rights Centre Amsterdam (CCRA), was clear from the day’s programme. Speakers who approached their subject from an academic perspective alternated with others who looked at the practical viewpoint. This served to highlight the multidisciplinarity of the day. There were academic contributions on the legal, medical and psychological aspects and more practical contributions from professionals who work in the field with young detainees, adolescents in foster care, addiction and addiction in pregnancy.
The seminar was made up of four parts, with each part chaired by a different chairperson. The chairman of the final part of the seminar, the former Minister of Justice Professor E.M.H. Hirsh Ballin, made a particular impressive. Before discussing his contribution, I would like to pause for a moment to reflect on the connection between Hirsh Ballin and Veerman. That connection goes way back, to long before Veerman started on the career celebrated by the seminar. Hirsch Ballin and Veerman have known each other since their secondary school days and have always kept track of each other. Their respective interests also exhibit parallels. For instance Hirsch Ballin has long been involved in human rights. Hirsch Ballin described the various contributions from the perspective of human rights and, by extension, of children’s rights. Firstly Hirsch Ballin observed that children’s rights and the anchoring of those rights in society, although not always explicit, had been the consistent theme throughout the day.
Children’s rights are relevant in such diverse and wide-ranging areas: whether it be the adoption of a child through a “hatch” or child abuse, both concern the rights of the child. Children’s rights are central not only to Veerman’s work but to his entire life. It is by no means axiomatic that children’s rights are foremost in a society that purports to be a knowledge society. Hirsch Ballin knows this from personal experience. He was involved in linking children’s rights and youth care. In the beginning it was not clear that children’s rights fell within the remit of the Ministry of Justice. Children’s rights were previously felt to be a subject that was covered more by the umbrella of social work. Nowadays, it is clear that children’s rights are legally relevant but that legal relevance does not detract from the other disciplines covered by the subject of children’s rights. It became clear during the seminar that those disciplines include medical science and psychology.
Hirsch Ballin’s contribution made an impression because of his chosen perspective. An interesting contribution from the legal point of view was made by Professor J. E. M. Polak from the Council of State. The Council of State has two primary tasks, carried out by two separate divisions. The Advisory Division, as its name implies, advises the government and Parliament on legislation and governance, while the Administrative Jurisdiction Division is the country’s highest general administrative court. Professor Jaap Polak is Chairman of the Administrative Jurisdiction Division of the Council of State. Polak focused on the dilemmas involved in the legal protection of human rights. Being the highest administrative body in the Netherlands, the Council of State plays an important role as it often decides on questions of immigration law.
Polak discussed the relationship between international law and national law. This is important because many human rights, and indeed children’s rights, are codified in international conventions such as the European Convention on Human Rights (ECHR) and the Convention on the Rights of the Child (CRC).
Provisions from these conventions can, provided that they are binding upon all, have a direct effect on national legal systems. As a result national legislation can be set aside if it conflicts with international regulations. However courts will be cautious about exercising their powers to set aside national legislation or national decrees if they conflict with the provisions of international conventions that are binding upon all. The core of this discussion is that by setting aside decrees from the democratically elected Parliament, a court which is not democratically elected will undermine their legitimacy. If anything, this discussion has not abated but has flared up recently and is not restricted to the Netherlands.
It has been fanned by the anti-European attitude currently prevailing in many Member States. Great Britain is a case in point. That country is considering the idea of terminating its membership of the ECHR. The discussion in Great Britain was fuelled by a judgment from the European Court of Human Rights (ECtHR). The ECtHR found that the rule that prisoners in England are not entitled to vote is contrary to the ECHR. In the United Kingdom they did not understand how a court could set aside democratically drafted legislation. That is no surprise, given the sovereignty of Parliament in the United Kingdom.
There is a clash of tradition with the increasing legal protection of fundamental rights. This example shows that judges are at the centre of the discussion and must be conscious of this. That does not mean, however, that judges should be hesitant about applying provisions of conventions which have a direct effect. This discussion is playing out in the Netherlands as well as in the United Kingdom. Member of the Lower House Joost Taverne (VVD) presented a Bill to the effect that the judge no longer has the power, in principle, to exclude the application of a law in a procedural sense. The background to this is that the question of whether national Dutch law is compatible with international law is a question for the Legislator and not for the courts. The Legislator’s opinion on this question must be definitive and must not open to interference from the courts.
Consequently this also applies in cases where there is a conflict with provisions of international conventions that are binding upon all. The court would therefore no longer be permitted to assess against human rights conventions. According to Polak, given the important position of human rights in our rule of law, that would mean an erosion of the rule of law. Moreover, it would lead to a massive influx of cases before the ECtHR in Strasbourg. After all, if the Dutch court is no longer permitted to assess laws in a procedural sense against the ECHR, the individual citizen will be forced to apply to the Court in Strasbourg for adequate protection of rights. This would mean that citizens would only be able to invoke the rights embodied in the ECHR before the ECtHR and no longer before the national court, thus resulting in assessment by a single court. Polak emphasises that according to an opinion from the NVVR dated 5 April 2013, the Bill may conflict with Article 13 of the ECHR, which provides that everyone whose rights and freedoms under the Convention are infringed has the right to an effective remedy. Although the Council of State has prepared its advice, it has yet to be published. Polak points out that Taverne’s Bill requires a Constitutional amendment and that is a lengthy process.
Polak observes that the case law of the Administrative Jurisdiction Division of the Council of State is often criticised by champions of children’s rights. Administrative courts would be cautious with this sort of case. Polak does observe, however, that there is a discernible trend in this case law which should gladden the hearts of those critics. Before 2012, the Administrative Jurisdiction Division of the Council of State had never given a clear opinion on whether provisions from the CRC could be invoked directly in the national court. The Administrative Jurisdiction Division of the Council of State made an exception to its caution for Article 12 of the CRC. This Article provides that children who are capable of forming their own views must be given the opportunity to express those views, including in relation to their application for asylum. With regard to other Articles, the Administrative Justice Division of the Council of State has always left open whether these provisions have direct effect or has determined that they do not. The “turnaround” came in a judgment of 7 February 2012. In this judgment, the Administrative Jurisdiction Division of the Council of State ruled that Article 3 of the CRC can in any event have direct effect under certain circumstances. The Court must assess whether national authorities have had regard to the interests of the child in their decision-making. If they have not, the Court must in principle take a decision on whether the manner by which the authorities arrived at their decision is in conformity with the law. Polak takes the view that despite the ongoing discussion of whether Article 3 of the CRC is a “provision that is binding upon all”, the Administrative Jurisdiction Division of the Council of State has introduced a marginal test here on whether the administrative authority did have sufficient regard to the interests of the child in its decision. Polak describes this as a marginal test of the child’s best interest.
The aforesaid development stems from European Law. The European Court of Justice in Luxembourg does permit provisions originating from the European Union which allow Member States a certain discretion to be invoked in the national courts. The fact that the provision of EU law allows the national legislator discretion does not mean that the Court is not permitted to assess whether national authorities have gone beyond the limits of this discretion. The Court can therefore assess whether a national administrative authority has gone beyond the limits of the discretion conferred on it.
Polak (who founded the Janusz Korczak Stichting together with Veerman in 1982) concluded by reiterating that some of the people working in children’s rights believe that the Administrative Jurisdiction Division of the Council of State is too cautious in its case law, particularly in immigration cases. According to Polak, this may well be explained by the fact that the precedence effect in this type of case can be considerable. This precedence effect of a single judgment for other cases is difficult to gauge. This type of judgment, which might for example involve residence entitlements in the Netherlands, will not always be received with open arms by politicians in The Hague. This does not detract from the fact that champions of children’s rights have set in motion positive developments which regularly remind the Dutch government of the importance of children’s rights.
Another, partly legal contribution came from Professor Dr Michael Freeman (University College London). Freeman, focused on cultural aspects and children’s rights. The title of Freeman’s presentation “Children’s rights and harmful practices.” Freeman discussed practices that are part of certain cultures, focusing primarily on circumcision of both boys and girls. He discussed the extent to which these culture-based practices are consistent with, or can be reconciled with, children’s rights as they are anchored, inter alia, in the Convention on the Rights of the Child. Freeman drew a distinction between two types of harm which can confront a child, both linked to rituals anchored in a culture. In the first place, a child can be harmed by something or someone and in the second place a child can be harmed for certain religious or ritualistic purposes. In the case of circumcision of boys, the ritual undoubtedly causes the child pain.
The question is whether the pain serves a certain purpose. Relevant indications of whether that is the case can be found by answering the following questions: “Why is the ritual performed and what are the long-term effects?” Article 24 of the Convention on the Rights of the Child provides for child healthcare. This Article also contains an obligation on States to take appropriate measures to abolish customs based on traditional practices that are prejudicial to the health of children. According to Freeman, Article 24 of the Convention on the Rights of the Child covers the causing of harm with long-term – adverse – effects. Not only Article 24 but also Article 19 of the Convention on the Rights of the Child plays a role. This Article covers the prevention of child abuse. However, its wording is quite general. Article 29 of the Convention on the Rights of the Child relates to the cultural identity of the child. There may be some contradiction between those provisions. One example cited by Freeman is circumcision of boys and girls. In both cases, the ritual causes harm to the child. However the injurious incident, in this case circumcision, also contributes to the child’s cultural identity. This is where a balancing of interests is required. In both Judaism and Islam circumcision is important for the cultural identity of the child.
Freeman draws a distinction between male and female circumcision. In both cases there is harm and both cases also involve the cultural identity of the child in question. This is clear. But according to Freeman there is a difference. If the interest of the child in its own identity must be weighed against the harm suffered by the child as a result of the practice the outcome, Freeman contends, will be different for men than for women. For men, circumcision because of a cultural/religious belief is permissible, whereas a weighing of interests between harm and identity in women must be produce a negative outcome. This is entirely because of the nature of the harm.
In addition to the difference between circumcision in boys and girls, Freeman also touched on a difference between circumcision in the Jewish culture and circumcision in the Islamic culture. In Judaism, boys are circumcised at a very young age – only a few days after the birth – whereas in the Islamic culture it takes place when they are older. This difference between the two religions can partly be traced back to the difference in circumcision in boys and girls because female circumcision occurs primarily in Islam.
Freeman pointed out that female circumcision is forbidden in the United Kingdom. That does not mean, however, that it does not take place in practice. Whilst public opinion turned against female circumcision long ago, it was only recently that male circumcision became the subject of public debate. It started in Sweden and there is also an anti-circumcision movement in the Netherlands.
Finally, Freeman wondered whether the time was ripe to start a discussion on banning male circumcision. He reiterated that the distinction between male and female circumcision is crucial. The reason for circumcision is also different. There is harm to the child in both cases. In saying this, Freeman meant that the child would in any event experience discomfort from the procedure. In boys, however, the practice is not harmful in the sense that there will be lasting damage, whereas this is the case for girls.
Freeman cited Article 24 of the Convention on the Rights of the Child, which prescribes that the State has an obligation to prevent children from suffering harm because of culture-based practices. The Convention on the Rights of the Child prescribes a universal test to determine whether or not a certain practice is permitted. This (and Article 24 of the Convention on the Rights of the Child) does not mean that there is no latitude for beliefs within different cultures. In other words, there must still be latitude for cultural diversity. In the jargon, this latitude is referred to as the “margin of appreciation”. It is in fact the margin of appreciation enjoyed by States Parties within the Convention on the Rights of the Child. To determine whether circumcision is permissible within the Convention on the Rights of the Child it is necessary to consider whether it can be justified on the ground of the Convention and as such falls within the margin of appreciation. Freeman takes the view that circumcision of boys is justified under the Convention but that this does not hold true for the circumcision of girls. He stresses that in the case of male circumcision, cultural identity prevails over the harm that is caused to the child. Freeman believes that male circumcision must be regulated and that there should not be a ban. Laws which prohibit female circumcision do not appear to have the desired effect and the same can be expected of any law in relation to male circumcision. It would be preferable to find a solution by, for example, requiring the male circumcision to be performed by a doctor.
Freeman (also editor-in-chief of the International Journal of Children’s Rights, an initiative by Veerman) concluded by observing that major cultural differences must be overcome. For example if the Netherlands were to prevent male circumcision, boys could be circumcised in Belgium in future – if the circumcision was not taking place illegally in the Netherlands. That will probably not be in the best interests of the child. Time will tell how the legislator deals with the increasing criticism and discussion of circumcision which an inextricable part of modern society.
Freeman discussed the problems stemming from practices in different cultures. It is now clear that there must be a balancing of interests in such situations. Which should prevail: the retention/acquisition of a certain cultural identity or the right of the child not to suffer harm? Freeman focused this question on circumcision in boys and girls, a topical subject that has become an integral part of the zeitgeist and something that was probably dealt with very differently 20 years ago. It is in any event a known fact that the discussion on certain cultural practices flares up from time to time. The last example of this was the discussion on the ban of ritual slaughter in the Netherlands.
The rights of the child were also the focus of Dr Daniel Halperin’s talk. Dr. Halperin is a paediatrician in Geneva, Switzerland. Halperin (Chairman of the Swiss Janusz Korczak Association) attended a complicated birth as paediatrician. On the way to the delivery room he met the nervous expectant grandparents. In an attempt to reassure them, he promised to inform the grandparents as soon as he had any news of how mother and child were doing. In the end the birth went well and as he left the delivery room, Halperin told the new grandparents. To his amazement, the grandparents informed him that they already knew that mother and child were doing well. How did that happen? The answer was simple. The new father had sent a text message to the grandparents, with a photograph of the baby, informing them that they were now the grandparents of a healthy baby. Halperin, wondering whether the development was a good one, took this as the basis for the remainder of his talk. Halperin discussed the rights of the child from a medical perspective.
What was Halperin trying to highlight with this example? In his talk entitled “The Child in the Disoriented Time” Halperin first spoke of the speed at which everything happens nowadays. Parents often have less time, because mother and father are both working, and children must also adjust to their parents’ schedules. One consequence of this, Halperin said, is that children nowadays also grow quickly physically and do not have the time and space to develop gradually.
On the one hand, Halperin indicated that children are growing up faster and that time is passing faster. On the other hand, the period of adolescence lasts much longer than it did. The two seem to be at odds with each other. But what Halperin means is that although in the past children were not affected by the fact that everything could and did happen at speed, because that was simply not the case, children were forced because of the generally poorer circumstances to do heavy work at a younger age, for example in factories. This perhaps meant that children grew up quickly or had responsibilities at an earlier age but the process was probably more gradual than nowadays. There is possibly some interaction between the two situations. Nowadays time passes faster and children’s rights have improved, inter alia in the sense that they are no longer allowed to work at a young age. However the fact is that both parents often work nowadays and children must become independent more quickly in a different way.
Also consistent with the current zeitgeist and part of both Freeman’s talk about harm and Halperin’s talk on ”The Child in the Disoriented time” are ideas on children and drugs. Damon Barret, an Irish lawyer working for Harm Reduction International in London (who co-authored the Commentary with Veerman on Article 33 of the CRC on children and drugs) devoted a few words to this problem. In the first place, the way in which the Convention on the Rights of the Child deals with drugs is worthy of note. As its name suggests, the Convention deals with the rights of the child and not with obligations.
For this reason the Netherlands, inter alia, found that it would not be in line with the idea behind the Convention to include a ban on drugs and drug use. Article 33 of the Convention on the Rights of the Child provides that: “States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.” This is therefore an obligation upon States to protect children against drugs. The fact that the Convention does not contain a ban on drugs does not mean that States may not forbid them. States must, however, exercise care with their drugs policy. This means that States must consider properly whether their policy on drugs is effective. For instance, severe criminal sanctions will not always have the desired effect. A prison sentence may ensure that children have no access to drugs during their time in prison but they will not learn how to deal with their drugs problem. Civil law measures can also be stigmatising and deprive children of their freedom. Examples of this type of measure are placement in a rehabilitation centre or an institution.
Article 24 of the Convention relates to the right to health care and is therefore important for drug problems. Under this Article, children must have the right to help if they come into contact with drugs. The problem in the approach to children’s problems with drugs, according to Barrett, is the fact that there is no proven theory which tackles the prevention aspect of the problem.
It would appear from the outline above that Hirsch Ballin has hit the nail on the head. The subject of children’s rights is broad and diverse. The second word in the phrase might initially suggest that emphasis is placed on rights in the legal sense of the word. Although the basis might be legal, because that is the means by which rights can and must be effected, it is not true that the legal dimension is all that matters. There is much to be done both medically and psychologically to ensure the situation of children in our society continues to improve. The presentations in the practical and clinical component of the day demonstrated that this item is gaining a higher position on the agenda. Practitioners from the field included a juvenile court magistrate (Judge Ms. Toos Enkelaar) a psychologist (Ms. Susanne Wegen from Bouman mental health in Rotterdam) and an addiction specialist (physician Mary van Janssen van Raay from Bouman, GGZ), a clinical psychologist (Ms Dr. Annemieke van Dijke from the Delta Psychiatric Hospital), a child and adolescent psychiatrist (Ms. Alexa Rutten) and Prof. G.J. Stams, Professor of forensic orthopedagogy. The talks by these speakers demonstrated clearly how a juvenile court magistrate deals with certain problems arising, for example, when children are placed under supervision; the approach taken by doctors and addiction specialists in treating addiction in pregnancy and how they work together, for example, with the judiciary. This interaction between the judiciary and medical science was also highlighted in the talk given by Alexa Rutten, who in her capacity as a forensic psychiatrist is involved in advising the courts about the diagnosis of adolescents who come into contact with the police and how where they are accused of can be explained. Mr René de Bot (who works at Flexus Jeugdplein in Rotterdam) spoke about young people in fosterfamily care and Prof. Philip Jaffé, Professor in Psychology at the the University of Geneva and one of the leading persons of the International Institute for the Rights of the Child in Sion, talked about children and divorce and the role of the expert. Dr. Hans van Loon, Secretary-General of The Hague Conference on Private International Law (HCCH) compared the CRC to the Hague Convention on Protection of Children. Historian Dr. Bernard Kruithof (University of Amsterdam) discussed, inter alia, the importance of historical pedagogy and spoke about Dr Dan Mulock Houwer (former Secretary-General of the World Union for Child Welfare in Geneva who was a source of inspiration for Veerman). And Ambassador Richard Clarke (Director of the London based Child Soldiers International, formerly called the Coalition against the Use of Child Soldiers) spoke on prevention and the work to end the recruitment of under 18-s.
Essentially, Prof. Ernst Hirsch Ballin was right when he said that children’s rights is a very broad subject. He said that children’s rights are involved both in “hatch” adoption and child abuse. Children’s rights can and should be placed in a broad perspective, because only then can the child’s best interest be served.
In conclusion, Veerman said a word of thanks. In his acknowledgement he spoke of his own youth, which was marked by the events of the Second World War. The injustice done to his family and other Jewish families became Veerman’s motivation to dedicate himself to the rights of the child.
The premises where the CCRA had organised the seminar (the Royal Academy of Sciences are located where the ghetto started in Amsterdam during the war, opposite his great-grandparents’ house on Kloneviersburgwal, where they had haberdashery and could never have dreamt that their great-grandson would ever celebrate his anniversary in the Academy opposite). The talks during the seminar showed that the Polish-Jewish paediatrician and pedagogue Janusz Korczak was not only a source of inspiration for Veerman but was also a connector between the speakers. Not least because Korczak, like Veerman, had dedicated himself to children’s rights in the broadest sense. Finally, Philip Veerman thanked the audience and speakers and especially Dr. Coby de Graaf of the CCRA and her staff for organising the day.
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