Book chapter 1269 views
England and Wales
Litigating the Rights of the Child
Swansea University Author: Jane Williams
This chapter is part of a significant volume which will advance academic study of children and young people's human rights. It compares and contrasts the ways in which the internationally recognised human rights obligations, partiuclarly the UNCRC, are being used in litigation in different coun...
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This chapter is part of a significant volume which will advance academic study of children and young people's human rights. It compares and contrasts the ways in which the internationally recognised human rights obligations, partiuclarly the UNCRC, are being used in litigation in different countries and legal systems. This chapter analyses the impact of the UN convention on the Rights of the child on litigation in England and Wales. It is argued in the chapter that although the UK has not yet legislated to incorporate the Convention in UK domestic law, there are various ways in which the Convention, like other unincorporated treaties, can influence the decisions of the courts. for example, by means of a rule of construction, by means of developing established legal notions and by absorption in to criteria for legality of administrative decision-making. the impact of the convention in England and Wales is demonstrated in a number of areas of both substantive and procedural law. These include areas where underlying policy considerations are not traditionally inclusive of children’s rights. However, judicial implementation can only deliver incremental change in response to such cases as reach the senior courts, and, in the Anglo-Welsh legal system, judicial deference to the legislature, and to executive agencies exercising statutory discretion, remains strong. It is thus argued that legislative incorporation is vital to deliver the necessary systemic changes. Reference is made to Wales, where a novel legislative model is in place, using the concept of ‘due regard’ to require the devolved administration to think proactively about implementation. The chapter concludes with the view that further progress in implementation will be enhanced by a combination of such legislative measures and effective enforcement mechanisms, including but not limited to litigation and judicial enforcement.
human rights, UNCRc, children, child law, devolution, England and Wales, judicial enforcement, implementation
Faculty of Humanities and Social Sciences