INTRODUCTION

International law is clear that children are rights holders, entitled to a range of rights under the Convention on the Rights of the Child (CRC) and numerous other international and regional instruments. Interestingly, the Convention is silent on whether the child has a right to access justice, although the Committee on the Rights of the Child has made it clear that children are entitled to remedies for breaches of their rights. In setting out this position, the Committee has focused on the availability and effectiveness of national rather than international mechanisms. However, the adoption of the Optional Protocol to the Convention on a Communications Procedure has now brought international remedies firmly into view.

Liefaard remarks that the concept of access to justice has ‘neither been carefully conceptualized, nor contextualized in relation to children’ and this is particularly true at the international level where there is a significant gulf between the acceptance of the child’s right to access justice and Children’s experience. It is the aim of this chapter to advance our understanding of these issues through an exposition of the child as a legal actor under the CRC.

THE CHILD AS A LEGAL ACTOR UNDER THE CONVENTION ON THE RIGHTS OF THE CHILD

As a legally binding international instrument, with almost universal ratification, the CRC is the benchmark against which a State’s treatment of its children is measured. The breadth of the Convention – which covers the full spectrum of rights including social, economic, and cultural rights, and civil and political rights – means Children’s rights must be protected, promoted and fulfilled in all aspects of their lives. The Convention confirms the status of children as rights holders and is clear that, notwithstanding the supporting role played by the child’s family, the responsibility to vindicate Children’s rights rests with the State. Article 4 recognizes that the State, as duty bearer, must take all appropriate measures to implement the Convention. Under Article 5, States recognize it is the responsibility of parents to provide the child with appropriate direction and guidance in the exercise of their rights in a manner consistent with their evolving capacities.