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A COMPARATIVE ANALYSIS OF RIGHTS OF CHILD IN DIFFERENT JURISDICTIONS

By- Asma Praveen, 4th Year Student at Glocal Law School, Glocal University, Saharanpur

In this article, the author will discuss the rights of a child in different jurisdictions along with the implementation of International Treaties relating to children and the domestic laws for safeguarding the rights of children in Australia, China, Japan, and India.


INTRODUCTION

Australia

The Constitution of Australia is federal in nature. The power is divided amongst the legislative, executive, and judiciary and distributed between the federal government and 6 states and 2 internal self-governing territories and some external territories.

Apart from the self internal governing territories, external territories are governed by the federal government.

Age of majority- The age of majority under Australian law is 18 years as per the Age of Majority Act, 1980.

China

China is a socialist country. The ruling government in China is the People’s Republic of China(PRC). The PRC Constitution provides for the state protection of children and provides for the state protection of children and prohibits the maltreatment of children.

Age of majority- Under the law of the People’s Republic of China on Protection of minors, “minors” are defined as citizens less than eighteen years old.

Japan

Japan has a constitutional monarchy system. There is also a separation of power between legislative, executive, and judiciary. Japan has many legislative concerning children's rights, including child health and social welfare, child education, child labour and exploitation, the sale and trafficking of children, and juvenile justice.


India

India has a quasi-federal Constitution and the Constitution of India provides numerous rights for the children. Other than the constitutional provisions, India adopted a National Policy for Children in 1974, declaring children to be the nation’s most precious asset. Hence, from the Fourth Five-Year Plan onwards, perhaps a little earlier than that, children have certainly found mention in national development plans, but insufficient attention in terms of investment. In the wake of the 1990 World Summit for Children, the Government of India adopted a National Plan of Action for Children in 1992, with goals for the decade. In the year 1992 itself, it also ratified the CRC and thereafter in its Periodic Country Reports submitted to the UN Committee on the Rights of the Child has dwelled at length about the measures taken for ensuring children’s rights.

RECOGNITION OF INTERNATIONAL TREATIES SPECIFICALLY DEALING WITH CHILDREN

Australia

  1. Convention on the Civil Aspects of International Child Abduction, 1987.

  2. Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (The Hague, 29 May 1993). [1998] ATS 21.

  3. Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. [2002] ATS 2

  4. Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict [2006] ATS 12.

  5. Protocol to Amend the Convention for the Suppression of the Traffic in Women and Children of 30 September 1921, and the Convention for the Suppression of the Traffic in Women of Full Age, 1933, [1947] ATS 17.

  6. Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect to Parental Responsibility and Measures for the Protection of Children (under the auspices of the Hague Convention) [2003] ATS 19.

  7. International Convention for the Suppression of the Traffic in Women and Children, 1921. [1922] ATS 10.

  8. Convention on the Rights of the Child [1991] ATS 4.

  9. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography [2007] ATS 6.

  10. Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially Women And Children, Supplementing The United Nations Convention Against Transnational Organised Crime 2000 [2005] ATS 27.

The aforementioned International Treaties throw light upon the International Obligations which Australia has taken for protection of interests of child. These International Conventions serve as the guiding light for the Australian Judicial System in interpreting laws in consonance with the rights of the child.


China

  1. U.N. Convention on Rights of the Child 1989 (CRC). It came into force in China from April 1, 1992 onwards.

  2. Optional Protocol to the Convention on Rights of Child on the Sale of Children, Child Prostitution, and Child Pornography 2000. It Came into force in China from January 3, 2003 onwards.

  3. International Covenant on Economic, Social and Cultural Rights 1966. It was notified to be applicable in China on June 27, 2001.

  4. The Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW). It is applicable in China since December 3, 1981.

  5. The Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. This convention is also known as Worst Forms of Child Labour Convention, it was adopted by the International Labour Organization in 1999 as ILO Convention No 182. It is one of eight ILO fundamental conventions and it applicable in China from August 8, 2003.

  6. The Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption 1993. Receipt of Instrument: September 16, 2005.

Japan

Japan has ratified the following conventions:

  1. The U.N. Convention on the Rights of the Child 1989 (CRC).[1]

  2. The Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography.[2]

  3. The Optional Protocol to the CRC on Involvement of Children in Armed Conflict.[3]

  4. The International Covenant on Civil and Political Rights.[4]

  5. The International Covenant on Economic, Social and Cultural Rights.[5]

  6. The Convention on the Elimination of all Forms of Discrimination against Women.[6]

  7. The Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour.[7]

  8. The Convention concerning Minimum Age for Admission to Employment.[8]

India

  1. Conventions on the Rights of the child, 1989.

  2. The Convention on the Elimination of All Forms of Discrimination Against Women 1979.

  3. Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

  • Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 2007.

  • The International Covenant on Civil and Political Rights.[9]

  • The International Covenant on Economic, Social, and Cultural Rights.[10]


DOMESTIC LAWS

Australia

  1. Family law- In Australia, family law courts consider the “best interests of the child”, while deciding cases relating to children.

  2. General access to health care- Children may be able to give consent to medical procedures. Children have a right to access health care via Australian’s Universal health insurance programme.

  3. Education- Governing education legislations are as follows- Education Act, 2004; Education Regulations, 2005. No child can be discriminated against on the basis of disability under the Disability Discrimination Act, 1992.

  4. Employment of Children- In Australia, the minimum age of employment of child is varied across the laws of state and territory.

  5. Children within Australian Defence Force (ADF)- 17 years is the minimum age for the recruitment of ADF.

  6. Juvenile Justice- Standard age for criminal responsibility in all Australian jurisdictions is 10 years of age. Between the age of 10-14 years, the crime done by any child will be considered as a doli incapax ( unable to form any criminal intent necessary to be guilty of crime).

  7. Sale and trafficking of children- Offences against children are crime by both federal and state and territory laws.


China

  1. PRC Law on Maternal and Infant Health Care- Primary law governing child health in china is the PRC Law on Maternal and Infant Health (effective from June 1, 1995). According to Article 2 of the Maternal and Infant Health Law 1994, it is the duty of the State to provide all the necessary aid to the mother in order to ensure infant health.

  2. Education- Education is compulsory in China as per the Compulsory Education Law. It codified the right to free and compulsory education until the age of nine years of children.

  3. Special education for disabled children- PRC law on Compulsory Education, article 19 provide special education for disabled children, it is the duty of the state to provide and promote such an institution.

  4. Correctional Education and work-study schools- Article 21 and 22 of the PRC, directs state government to establish special schools for children “who perpetrate serious misbehaviours” as specified in The Law on Prevention of Juvenile Delinquency (Prevention Law) as a part of the compulsory education.

  5. Child labour and exploitation- Child labour is prohibited in China and the minimum age of working is sixteen in China. Article 15 of labour laws prohibit an employer to recruit minors under the age of sixteen.

  6. Sale and Trafficking of children- The PRC Criminal Law is an active law related to the sales and trafficking of children and contain a heavier penalty for committing such offence.

  7. Child pornography- There is no specific law in China regulating child pornography only distributing pornography to minors is punishable.

  8. Juvenile Justice- The age for criminal liability under the PRC Criminal is sixteen years. The Minor Protection Law requires the judiciary to protect Minors’ right during judicial proceedings.

Japan

  1. Child health and social welfare- There are various laws governing the child health and social welfare and these are, National Health Insurance Law (Law no. 192 of 1958), Employee Health Insurance law (Law no. 70 of 1922), and Mother and Child Law (Law no. 141 of 1965).

  2. Education- Article 26 of the Constitution of Japan guarantees children’s’ right to an education. The right to education is also guaranteed for children with disabilities.

  3. Child Labour and Exploitation- Japan Constitution prohibits child exploitation. The labour standards law has provided to protect child labour. No child below 13 years of age can allow working in any factory or industry.

  4. Sales and trafficking of children- There are several laws that punish or provide measures to prevent the sexual exploitation of children and trafficking of the children.

  5. Juvenile Justice- If an offence is committed by any person below the age of 20 years, he/she will be treated under Juvenile law and not as per Criminal Procedure law. There is a separate procedure for children punishable of any offence.

India

  1. Child health and social welfare- India has many domestic laws on child health and social welfare and these are the Women’s and Children’s (Licensing) Act, 1956, National Policy for Children, 1974, Guardians and Wards Act, 1890, Child Marriage (Restraint) Act, 1929 (Amended 1979 and National Health Policy, 2002.

  2. Education- The Constitution of India guarantees free and compulsory education to six to fourteen years children apart from it India has National Policy on Education, 1986. (New Policy on Education drafted in 2020).

  3. Child Labour and Exploitation- Bonded Labour System (Abolition) Act, 1976, National Policy on Child Labour, 1987, and Protection of Children from Sexual Offences Act, 2012 are some of the laws in India against child labour and exploitation.

  4. Sales and Trafficking of children- Immoral Traffic (Prevention)Act (Amended in 1986), 1956. is the regulating law in India related to the sales and trafficking of children.

  5. Juvenile Justice- Juveniles have a different procedure in India they are regulated under the Probation of Offenders Act, 1958, and Juvenile Justice (Care and Protection of Children) Act, 2000.

CONCLUSION

If we compare all the four countries' child-specific laws than we can say that all the countries have concern for children as can be seen from their International Obligations and the domestic laws, but despite that, the countries are facing serious issues in the implementation of the same. However, there are also examples of how this international law and its domestic counterparts have also helped in gradually improving the conditions of the children, for example, youngsters in Australia have access to high-quality college education and health services. Most of them sleep in safe and nurturing homes. The community and society also take active steps to improve the opportunities for youngsters. Nevertheless 20 years after Australia signed the Convention on the Rights of the Child, there is still a significant number of vulnerable youngsters and children who don’t have access to the same set of facilities. Children experiencing condition or psychological state problems, youngsters with disabilities, youngsters living in out-of-home care, youngsters in immigration detention, and youngsters need explicit help to create positive the area of their rights unit protected. But it appears that Japan maintains a comprehensive system to protect children’s rights. If we come to China, Chinese children do not fully enjoy their rights as the country doesn’t have substantive democracy where people are able to enjoy civil liberties, even though progress has been made in recent years. The trafficking of children in Japan is much high, there are differences between different regions in health and education facilities for children, many areas still remain problematic. When we talk about India, it has also a comprehensive law to deal with the children’s right, but the reality is something different, and proper implementation of laws is required and more efforts by the Governments to create better infrastructure. The New Education Policy of India can also help in making better and informed children in their formative years by making more use of mother tongue in teaching and giving more choices to students to study as per their interests during teenage.

References

[1] Convention on the Rights of the Child, Treaty No. 2 of 1994 [2] Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography, Treaty No. 2 of 2005. [3] Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict, Treaty No. 10 of 2004 [4] International Covenant on Civil and Political Rights, Treaty No. 7 of 1979. [5] International Covenant on Economic, Social and Cultural Rights, Treaty No. 6 of 1979 [6] Convention on the Elimination of all Forms of Discrimination against Women, Treaty No. 26 of 1985. [7] Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, Treaty No 182 of 2001.

[8] Convention concerning Minimum Age for Admission to Employment, Treaty No. 5 of 2000.

[9] International Covenant on Civil and Political Rights, Treaty No. 7 of 1979. [10] International Covenant on Economic, Social and Cultural Rights, Treaty No. 6 of 1979

(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

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