About the UNCRC - addressing the 'balance' between the rights of the child and parental choice

The Right of the Child to have a Green Tongue

The Minister and the Boards have referred to striking a ‘balance between ensuring that the rights and needs of children themselves are appropriately protected and facilitating parental preference for home education’. This assumes conflict between the interests of parents and children, when it is acknowledged in law at every level from local to international that parents are, prima facie, the most appropriate judge of (and advocate for) their child’s best interest. Only in exceptional circumstances should the state take over this essential parental role. There is therefore no such balance to be struck in normal circumstances, given that the parental preference should be assumed to be in the interests of their child – whatever style or form of education they favour. 

There have also been references in the regard to the United Nations Convention on the Rights of the Child.  We believe that the policy as drafted would run contrary to the wording and intent of that convention, which emphasises the role of family and parents in supporting their children.

The Convention is, as noted in the draft, not legally binding, containing no controlling language or mandates.  Writing in the Family Court Review principally about family law, James makes a point that applies equally to Northern Ireland:

“UNCRC is not yet part of English law (nor are there any indications that it might become so in the foreseeable future) and there is therefore no statutory requirement requiring children's views to be ascertained and taken into account”.

James, A (2008) Children, The UNCRC, and Family Law in England and Wales in Family Court Review Volume 46, Issue 1, pages 53–64,

It cannot create powers that conflict with existing law. It is notable with regard to the intent of the legislator that the government do not consider these rights of such importance to as to incorporate them into UK law.

In any case “the intention of Article 12 is to encourage adults to listen to the opinions of children and involve them in decision-making. It gives a participatory rather than a decision-making role in matters affecting them. This is to be given due weight that is appropriate to the child’s age and maturity.”

There is nothing in the Convention to suggest that their opinion must in every case be directly ascertained by government officials or that it is to be pursued at the expense of the other rights the UNCRC enshrines.

“The Convention:

  • explicitly recognises the family as the “fundamental group of society and the natural environment for the growth and wellbeing of…children” (Preamble)

  • acknowledges that parents have the “primary responsibility” for their child’s upbringing and  development (Article 18)

  • affirms that the family itself requires protection and assistance to fulfil its responsibilities and places a duty on States to support parents in rearing their children (Article 18)

  • states that children have a right to know and be cared for by their parents (Article 7)

  • explicitly discourages the separation of children from their families (Article 9)

  • provides that where children are separated from their parents, the State has an obligation to try to ensure contact between them is maintained in accordance with the best interests of the child (Article 9.3)

  • provides for the principle of evolving capacity which means that the State must respect the rights of parents to exercise the rights of young children on their behalf and that this responsibility is gradually transferred to the child as their capacity develops. It also provides for parents to guide their children in the exercise of their rights (Article 5)”

Source - http://www.childrensrights.ie/sites/default/files/information_sheets/files/QandAtheUNCRC.pdf

It is clear that the Convention does not require or permit the State take the place of the parent in taking decisions about the best interests (educational or otherwise) of their child, but rather emphasises the role of parents and family.  The moral duty to take children’s wishes into account is acknowledged by parents, what they struggle with is the idea that this is well served by compulsory interviews by strangers and routine overruling of parental judgement.  

The fact the UK is a signatory of the UNCRC does not place a positive duty to create laws in compliance with the UNCRC, rather it confers a duty to NOT make law and policy that is violation of the convention. Yet the requirement for home visits and assessment in the NI EHE Draft Policy falsely presumes that the child would desire to have a stranger enter their home and ask intrusive questions about their learning, social, and emotional life.

The late Katerina Tomsevski, former UN Special Rapporteur on the Right to Education, had this to say:  

“The objective of getting all school-aged children to school and keeping them there till they attain the minimum defined in compulsory education is routinely used in the sector of education, but this objective does not necessarily conform to human rights requirements. In a country where all school-aged children are in school, free of charge, for the full duration of compulsory education, the right to education may be denied or violated. The core human rights standards for education include respect of freedom. The respect of parents' freedom to educate their children according to their vision of what education should be has been part of international human rights standards since their very emergence.”