The right to education in the CRC - Minimum ages and the CRC
All the main international human rights treaties contain provisions on the right to education. However, the CRC offers the broadest approach to date, devoting two specific provisions to the right to education and a number of other articles that are directly or indirectly related to it. The comprehensive nature of the CRC’s provisions on education and the focus on the enhancement of opportunities for the child’s full development are powerful tools for the protection of children from abuse and exploitation.
Art.28 of the CRC refers to:
· free, compulsory primary education for all;
· different forms of secondary education available and accessible to all;
· higher education made accessible on the basis of capacity;
· vocational education and guidance;
· access to scientific and technical knowledge;
· modern teaching methods.
As for the aims of education, art.29 of the CRC speaks of the full development of the child’s personality, but also his or her talents and abilities, requiring that these too are developed to their full potential.
Additional articles particularly relevant to education are those dealing with child labour (art.32) and, perhaps slightly less directly, criminal responsibility (art.40) and harmful traditional practices (art.24.d), given their detrimental impact on the completion of education, especially at the compulsory level.
Focusing on compulsory education is necessary for a series of reasons. Firstly, it is a State obligation under the CRC (and other widely-ratified human rights instruments)  to ensure that education is free and compulsory at least at the primary level. The fact that this duty has evolved over time to extend beyond primary education in the majority of countries in the world bodes well for the future. However, this is less encouraging if enforcement and implementation are threatened by other factors and if legislation itself presents lacunae or overlaps that heighten risks for children’s full development. True, the CRC does not mention enforcement, but it does require States to “take measures to encourage regular attendance at schools and the reduction of drop-out rates”. Exploring the extent to which states comply or not with this requirement is not just a matter of statistics. Root causes, obstacles and constraints need to be considered, too.
Secondly, compulsory education is not only an obligation for States but also for parents and, indirectly, for children. It is therefore important to factor in these actors’ own views of education and its relevance for them, in order to assess challenges to the actual implementation of compulsory education. Here it is also useful to question the intended and unintended consequences of compulsory education: does it imply the criminalisation of parents who cannot afford to send their children to school? Or does it make children themselves liable for non-attendance through elevating truancy to the level of a punishable offence? And how do these questions square with potentially contradictory laws and policies about expulsion from school (for pregnancy, for instance)? The excerpts from State Parties’ reports illustrate a variety of opinions on these aspects.
Thirdly, compulsory education can also be seen as a key factor in combating discrimination (on any grounds but in particular on gender) and in ensuring that the child is at the centre of educational laws and policies (compelling attendance implies that education is in the best interest of the child, though further questions need to be raised here, as suggested throughout this report)). This reinforces the need to look at practices that contravene these approaches (for gender discrimination the issue of child marriage is a case in point). Further support in this sense is provided by the holistic nature of the Convention and the links between the right to education, the CRC general principles (non-discrimination; best interests of the child; life, survival and development; view of the child) and the respect for the evolving capacities of the child (art.5). This is particularly evident when looking at the definition of the child (art.1) and minimum ages.
At the level of practical law implementation, setting age limits is no easy task. Any decision on this matter requires balancing at least two principal concerns: 1) to protect children from assuming premature responsibilities and engaging in activities that would harm their full development; 2) to empower children in accordance with their maturity and capacities (art. 5). In addition, there is also the need to respect the general principles of the Convention: art.2 (non-discrimination), art.3 (best interests of the child), art.6 (the right to life, survival and development), and art.12 (respect for the views of the child). How to concretely achieve this within national measures of implementation is very complex and requires an equally complex response.
It is standard practice that national laws set at least an age of majority above which any individual is considered an adult, fully capable of making autonomous decisions. The majority of States also use their legislation to set additional age thresholds for particular purposes, with or without qualifications. This can certainly be useful in terms of clarity if it is done in a coherent way. However, if national laws contradict each other and their purposes are not supported by a solid justification, the results can be confusing and counterproductive: instead of protecting children and their rights or recognising their autonomy in exercising rights, developing their potential and assuming responsibilities, the law could in fact jeopardise them further. The concept of majority, for example, can vary depending on whether it concerns civil, penal, political or other aspects. The same person could thus be considered a child for one purpose but an adult for another – a confusion which would compound the difficulties in assessing his or her actual situation and pose a serious threat to his or her physical and psychological integrity, as well as to the enjoyment of his or her rights, including the right to education.
The CRC does not help much in this sense. In fact, art.1 - which defines a child as “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier” [emphasis added] - proves to be particularly critical in situations where children acquire majority through marriage or criminal responsibility. Such cases, paradoxically, would not seem to be in breach of the Convention. At the same time, though, if this occurs at a very young age, the whole thrust of the CRC loses its meaning. Indeed, the status of these girls and boys is not clear: they are still children from a strictly psychological and physical point of view, but already ‘adults’ according to the law of their country. Their childhood is denied, and so are their corresponding rights.
The language of art.1, therefore, leaves room for confusion over the definition of the child, the notion of majority, and the different legal minimum ages. This alone can have a prejudicial impact on children and on their development and generates a legitimate concern for coherence, both between art.1, the CRC general principles and possible age thresholds, and between those thresholds themselves.
This research shows that the CRC ideal definition is still at odds with a reality where the concept of who a child is and the notion of protecting and promoting the corresponding rights and capacities vary significantly, leading to a great deal of inconsistency. A cursory look at our summary table confirms this, showing that a huge variety of minimum ages exist under the law, even for the same purpose. Moreover, not only do these ages vary from country to country, but at times also within the same country. They also vary over time according to changing circumstances, decision-making powers, social perceptions and cultural and social developments. In addition, while legislation on minimum ages can sometimes intend to ensure protection, at others it aims to respect autonomy and the child’s capacity to act and make decisions. These variations reflect a lack of national and international consensus and lead to an apparent perplexity about the idea of universal minimum age standards and their purpose.
Each of the minimum ages considered in this research encompasses both protection and autonomy as they can all be set in order to protect the child from risks and premature responsibility, but also to recognise that there are situations in which the child is actually willing and able to make an independent decision. Setting a minimum age then becomes a matter of finding the ‘right’ balance: it is not so much a matter of the ‘right’ age, but rather of the ‘right’ approach. This is why it is important to examine them in their own merit but also in connection with each other, as explained in the following section.