Children’s Rights International
Justice is Hope
An Initiative of World Congress on Family Law and Children’s Rights Inc.

4th World Congress on Family Law and Children’s Rights, Cape Town, South Africa, 20 – 23 March 2005

In March 2005 in Cape Town, South Africa approximately 700 judges, lawyers and other professionals committed to children’s rights gathered at the 4th World Congress on Family Law and Children's Rights.

The venue was the Cape Town International Convention Centre. This was the fourth such meeting following the inaugural Congress in Sydney, Australia in 1993; the second in San Francsico, USA in 1997; and the third in Bath, England in 2001. It marked the 15th anniversary of the most widely ratified human rights convention of all time, the United Nations Convention of the Rights of the Child (UNCROC).

Although real progress has been made since the Convention was adopted, children are still dying in appalling numbers from preventable diseases such as malaria. Some 300,000 are child soldiers, or otherwise victims of the ultimate obscenity, war. Over 1 million are exploited every year in the multi-billion dollar sex industry.

Children are bought and sold by organised crime rings and moved around the world as slaves. More than 14 million are now orphaned by HIV/AIDS; many of these will act as family heads and carry the disease themselves. 65% of the 121 million children in the world who are not in school are girls. Many more million children live in poverty and hunger.

It was these issues and many others that brought together international delegates from throughout the world and in particular from the African continent to review the success or otherwise of UNCROC in its 15 years of operation.

Madam Graca Machel Patron of the 4th World Congress opened the event with a stirring personal call, which had the audience on their feet.

Her message was simple. Don’t hesitate to do what you can as an individual to protect the rights of children no matter how small that act might seem. Do it now was her strong message. This theme concentrated the minds of the delegates in an area where the vastness of the task can often seem almost overwhelming.

Madam Machel had been preceded by the African Children’s Choir who set an optimistic tone for the event with their stirring singing and dancing. The choir had just returned from George in South Africa where they had performed at the 46664 Concert in front of Nelson Mandela and his wife Graca Machel.

At the George Concert Nelson Mandela said:

"We are all affected by the Aids pandemic. But more than others this epidemic carries the face of women. For it is women who bear the most significant burden of HIV and Aids.….

"For every woman and girl violently attacked, we reduce our humanity. For every woman forced into unprotected sex because men demand this, we destroy dignity and pride. Every woman who has to sell her life for sex we condemn to a lifetime in prison. For every moment we remain silent, we conspire against our women. For every woman infected by HIV, we destroy a generation….

"We must be honest and open about the power relationships between men and women in our society, and we must help build a more enabling and supportive environment that puts the role of women center stage in this struggle…

"Each one of us - sister and brother, mother and father, teacher and student, priest and parishioner, manager and worker, Presidents and Prime Ministers, must add a voice to this call for action…

"Not tomorrow, or the next week - but now…

"You can help break the silence. Talk about HIV and Aids. You can urge your leaders to do more and act now. You can show more care and compassion. You can protect our women and the next generation."

Resolutions

COMMUNIQUE FROM THE 4TH WORLD CONGRESS ON FAMILY LAW & CHILDREN’S RIGHTS

We, representatives of 60 nations gathered for the 4^th World Congress on Family Law and Children’s Rights at Cape Town, South Africa from 20 – 23 March 2005,

FOCUSING

On the progress of the implementation of the Convention of the Rights of the Child after 15 years,

BELIEVING

That the health and education of the children of the world is the greatest guarantee available for the peace and prosperity of the world to come,

And believing that armed conflict is an almost insuperable obstacle to the health and education of children within the area,

Believing that the continued existence of child pornography, especially on the internet, trafficking in women and children, child soldiers, and children unable to receive an education by reason of having to work, and the plight of child refugees is a shame to the world and deserving of the strongest condemnation,

And, as to delegates from the United States of America believing that all nations should accede to the UN Convention on the Rights of the Child and noting that to date only the USA and Somalia have failed to accede to the Convention and that representatives of the Somalian Government have indicated an intention to accede to the Convention in the near future. Noting that the Supreme Court of the United States of America in the recent case of Roper declared unconstitutional the death penalty for children in the United States of America, CALL UPON the lawmakers of the USA to accede to the Convention as soon as possible,

The rights of indigenous children warrant robust protection in all dimensions of their lives,

That religious freedom is an important part of a child’s rights.

AND NOTING

That many States have made substantial progress in adopting and putting into effect the Convention on the Rights of the Child, but there are still some nations which by reason of poverty, internal strife, or other reasons still have a long way to go in implementing the Convention,

And that significant progress has been made in many countries by direct judicial action in implementing the Convention,

And that direct contact between judges and courts of different nations has been an effective mechanism in some cases for implementing some clauses of the Convention,

And noting the scurge of HIV / AIDS which in South Africa alone appears to affect 5.6 million people,

And that the extensive work is being undertaken globally for women in understanding, educating and challenging their attitudes and actions in matters such as health, sexual behaviours, parenting, status rights and in relationships,

That in some jurisdictions commissioners for children’s rights and children’s ombudsman have been able to play a notable part in the protection of children,

That Children’s Rights International has provided beneficial advocacy and representation in many jurisdictions for the protection of children.

THE CONGRESS HAS RESOLVED:

IMPLEMENTATION OF THE CRC

Resolution 1

That State Parties take their commitment to post-ratification more seriously to incorporate the Convention on the Rights of the Child into its domestic law and particularly that pursuant to Article 43 of the CRC State Parties make the principles and provisions of the CRC widely known to adults and children alike by ongoing programmes,

Resolution 2

This Congress calls upon all governments to give full legislative effect to the Convention on Children’s Rights in order to give full effect to and enforce the constitutional and international obligations towards vulnerable children,

Resolution 3

That bar societies and organisations representing advocates, develop ethical rules / standards of practice and advocacy in Family Law that are consistent with Article 3 and 12 of the UN Convention on the Rights of the Child; and that these rules / standards establish clear expectations for interdisciplinary continuing education,

Resolution 4

That the UN adopts accessible and meaningful international standards for the protection of children without parental care,

Resolution 5

That governments who have ratified the convention on the rights of the child should be encouraged to allocate sufficient resources to enable courts to implement to the fullest extent the conventions principles,

Resolution 6

States and international agencies when formulating and implementing measures and structures to prevent and (when it occurs) ameliorate the consequences of forced marriage

Must have the protection and rehabilitation of the victim as the primary focus and purpose of such measures and

Must not, to the detriment of the interests of the victim, be governed by issues of state / public policy or immigration / migration concerns

Resolution 7

That the CRC in its entirety, including especially the right of participation, the right to continuity of care, and the right to cultural and ethnic identity, shall be protected in child welfare proceedings involving indigenous children,

Resolution 8

There is a need for interdisciplinary collaboration and dialogue in defining a child’s best interests and such collaboration should be encouraged,

Resolution 9

That where possible courts and the legal system should provide for the financial security of children as an aid to their development health and education,

HIV / AIDS

Resolution 10

The Congress calls upon the all governments where HIV/AIDS is a significant problem to recognise and urgently address the issue of child sexual abuse in the context of HIV/AIDS through strengthening abuse prevention mechanisms ensuring timely access to post-exposure prophylaxis and counselling for child rape survivors and strengthening the justice system to:

Put in place a comprehensive package of services and support for children and their caregivers including but not limited to food security and the provision of financial support

Ensure access to effective and accessible ARV treatment for all HIV positive children and adults who need it

Improve access to sufficient resources for NGO’s and community-based organisations involved in the care and support of HIV infected families and communities

Provide local support which is appropriate to the needs of vulnerable children, in line with national priorities, sustained and properly coordinated.

NGOs

Resolution 11

The Congress urges all governments to give full support to NGOs in delivery of social services,

CHILDREN’S VILLAGES

Resolution 12

Under Review

THE CHILD’S VOICE

Resolution 13 & 14 inclusive

Children have a voice. What they say is important.

Governments should encourage the promotion and development of the participation of the child in the process since his rights are being examined and decided – making sure his voice is heard,

Resolution 15

The Congress calls upon States to include in their national legislation / plans of action:

education strategies

training of lawyers , judges, social workers and other stake holders affecting children

and other supportive measures to give children a voice in proceedings that affect them

Resolution 16

States should develop child inclusive processes which promote self esteem in children without burdening them with a sense of the responsibility of decision-making,

DOMESTIC ABUSE

Resolution 17

That family courts should present a consistent message of its condemnation of domestic abuse (DA); and for DA to be reduced and so the home to become a safer place for children and all family members; and for society’s unacceptability and intolerance of DA to reach those who seek assistance from the family court on financial matters; and for the family court to hand down fair, just and socially acceptable outcome,

Resolution 18

This Congress calls on all jurisdictions to make Domestic Abuse a factor and consideration in quantum on financial matters on relationship breakdown, wherever possible, and / or provide methods for the family justice system to compensate for the affect of DA on victims from the abusive family member, and for a report on progress at the next Congress,

Resolution 19

All States should make adequate financial, social and emotional provision to enable and support victims who wish / need to live away from their family and for community so to do,

RE-INTEGRATION

Resolution 20

That Children’s Rights International commit to look for development of community care systems for successful reintegration and repatriation of vulnerable children who are bonded slaves or are in slavery-like practices in all countries,

TRANSSEXUALISM

Resolution 21a

That legal and medical institutions throughout the world be called upon to recognise children with transsexualism as experiencing an intersexual condition derived by way of a natural biological variation in human sexual formation rather than a mental disorder,

Resolution 21b

That legal and medical institutions throughout the world be called upon to recognise the legitimacy of the sexual identity affirmed by a child (male or female) and the rights of that child to have a consistent legal identity (in the absence of that affirmation being derived from a diagnosed delusional disorder) rather than have that sexual identity imposed and not withstanding that such affirmed sexual identity is different from that indicated by one or more of the sexual characteristics of the children,

CHILD MIGRANTS

Resolution 22

The UN is requested to adopt and proclaim an International Child Migrants Day on the UN Calendar,

ABDUCTION OF CHILDREN

Resolution 23

"There is a need to explore the potential benefits of the Hague
Children's Conventions for a much wider range of States - including in particular the States in sub-Saharan Africa. With appropriate measures of implementation, (which respect culture which take account of issues of capacity, and in particular the problem of access to legal services and procedures), the Hague Children's Conventions offer a structure for improving inter-State co-operation in the region to protect children at risk in cross-frontier contexts, and they provide access to a rapidly developing global network of judges and other professionals who are devoted to the common protection of children."

RELOCATION

Resolution 24

Create a framework to make uniform standards to determine a child’s best interests (as opposed to forum selection) in international relocation cases,

ALTERNATIVE DISPUTE RESOLUTION

Resolution 25

Make mediation and ADR the primary forum for dispute resolution concerning children and families,

ADOPTION

While noting the tension between CRC and some aspects of international adoption, international adoption has a place, even as last resort and providing it is properly regulated for the protection of orphaned and refugee children,

FUTURE PLANS

That the next World Congress have a program that examines legal education programs (Law Schools) that focus upon Articles 3 and 12 of the UN Convention on the Rights of Children, and interdisciplinary studies related to children in family law,

That the next World Congress have a program that considers:

- Judicial roles

- Changes in judicial roles

- Judicial education and their relation to and promotion of Articles 3 and 12 of the UN Convention

This Congress calls for commitment globally to understand, educate and challenge attitudes and actions of men to sexual behaviour and relationships and children, and for reports on this work and progress made to be presented at the next Congress.

Conference Papers

Feedback and Commentaries on the 4th World Congress

Hodson, David
World Congress on Family Law and Children’s Rights
First published in Family Lawyer, July 2005

Schepard, Andrew
Law and Children
New York Law Journal, 12th May 2005

Papers presented at the 4th World Congress

Aeschlimann, Alain
The Convention on the Rights of the Child in the 21st Century: securing rights for children in an age of uncertainty

Apio, Eunice
The Case of Children Born of the Lord’s Resistance Army-Northern Uganda (Powerpoint Presentation)

Ashtakala, Tara
National Plans of Action for Children in Mine-Affected Countries: A Vehicle for Sustaining Mine Action Beyond the Ottawa Convention

Atwood, Barbara Ann
The Voice of the Indigenous Child: Enhancing the Indian Child Welfare Act through the Convention on the Rights of the Child

Bell, Nancy
Young People in Residential School Rights, Communications and ‘Complaints’

Bessant, Claire and Smith, Rhona
The Children’s Commissioner: A Knight in Shining Armour?

Bonthuys, Elsje
The Best Interests of Children in the South African Constitution

Boshier, Peter Principal Family Court Judge
Care and Protection of Children: New Zealand and Australian Experience of Cross-Border Co-operation

Bower, Carol
A Children’s Bill to heal a nation - addressing the wrongs of the past (Powerpoint Presentation) and Bibliography

Bryant, Hon. Diana Chief Justice
Care and Protection of Children: Australian and New Zealand Experience

Carl, Eberhard Judge
Giving children their own voice in family court proceedings: A German perspective

Carmody, Hon. Justice
Removing obstructions to justice in Family Court sexual abuse cases

Cleland, A.
Under threat: Scotland’s unique welfare-based forum for decisions about children and Powerpoint presentation

Covell, Katherine and Howe, R. Brian
The role of the community in implementing children’s rights

Czapanskiy, Karen Syma
Welfare Reform in the United States: Disconnecting Children from Parents

Dalley, Marlene L.
The Abduction of Children by Strangers in Canada: Nature and Scope
National Missing Children Services, National Police Service, Royal Canadian Mounted Police
[English] [Français]

Davel, Catharina
Exploring the Implications of Article 12 of the United Nations Convention of the Rights of the Child for Legal Practice and Legal Process: The Child’s Right to Participate in the Legal Proceedings

De Jong, Madelene
An acceptable, applicable and accessible family-law system for South Africa - some suggestions concerning a family court and family mediation

Dutschke, Mira
Children’s Right to Social Services

Elliott, John D. “Jay”
Deciding Destinies: The Lawyer and the Young Client’s Directives: The U.S. Perspective

Frías-Armenta, Martha and Jasa-Silveira, Graciela
An Evaluation of Process Rights applying the U.N. Standard Minimum Rules for the Administration of Juvenile Justice and United Nations Convention on the Rights of the Child: a Study of Mexican Children

Giese, Sonja; Meintjes, Helen; Croke, Rhian; Chamberlain, Ross
My neighbour tries to help, but she too is in need” Reflecting on realities as we work towards a world fit for children

Goolam, Nazeem
Interpretation of the Best Interests Principle in Islamic Family Law

Graham, Deborah
The Voice of Children: How can we hear it?

Guyot, Julie
Suffer the Children: the need for psychosocial rehabilitation as a function of peace-building

Haralambie, Ann
American Bar Association, Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases

Haralambie, Ann
American Bar Association Section of Family Law, Standards of Practice for Lawyers Representing Children in Custody Cases

Hawthorne, Bruce
Children’s rights to be parented by both parents after separation