Module 2: Module 2 - Children’s rights and the law

Introduction to Module 2

This is the second module in a course of five modules designed to provide health workers with a comprehensive introduction to children’s rights. While the modules can be studied separately, they are designed to build on each other in order.

Module 1: Childhood and children’s rights

Module 2: Children’s rights and the law

Module 3: Children’s rights in health practice

Module 4: Children’s rights in the wider environment: role of the health worker

Module 5: Children’s rights: planning, monitoring and evaluation

Module 2 provides you with an introduction to the legal basis for children’s rights. It is important to understand how the way of working in health care promoted in this course is supported by international agreements and national laws. The module comprises three study sessions, each designed to take approximately two hours to complete. The sessions provide you with a basic introduction to the subject and are supported by a range of activities to help you develop your understanding and knowledge. The activities are usually followed by a discussion of the topic, but in some cases the answers are at the end of the study session. Please compose your own answer before comparing it with the answer provided.

• Study Session 1 focuses on the international and regional conventions and agreements on children’s rights that all the countries of East Africa are signed up to. Specifically, you will find out about the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. By the end of the session you will be familiar with many of the key sections of these important documents and have had the opportunity to think about how they apply to your work as a health practitioner.
• Study Session 2 builds on your knowledge of the international agreements and explores how their principles are translated into the national laws of each country. It is important to understand what rights children have and how the law protects those rights. The session focuses on four aspects of the law particularly relevant to health workers – the right to be cared for and looked after, the right to protection from violence and abuse, the right to information, and the right to be heard and involved in health care decisions. By the end of the session you will understand how to respect children’s rights in your day-to-day work, and how to recognise and take action if you see that their rights are not being respected by others.
• Study Session 3 explores the meaning of the right to health. You will already have learned about the right to health alongside the whole range of children’s rights. However, understanding health in more detail is obviously important in your practice role. By the end of the session you will understand how the right to health is made up of many different elements. Some of these are about health care at your own facility, but the study session will also look at the wider issue of health care provision and the importance to children’s health of the social context; for example, the provision of clean water.

1 International and regional laws

Key words: Charter, Convention, guiding principles, primary duty bearer, ratification, responsibility

1.1 Introduction

In this study session you will learn about the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. They are referred to as international legal instruments or treaties. They both outline a broad range of rights that children are entitled to. They promote a philosophy of dignity and respect for children, challenging traditional views that children are passive recipients of care and protection.

While the UN Convention applies to children throughout the world, the African Charter was drawn up to address the particular situation of children in Africa. Both treaties include a number of rights directly and indirectly relevant to health. Knowledge of all these rights is important for health workers. This session will explain the rights in the UN Convention and the African Charter and help you to understand their relevance for your work.

1.2 Learning outcomes

When you have studied this session, you will be able to:

• define and use correctly all the key words used in this study session
• describe the key provisions contained in the UN Convention and the African Charter
• explain the four principles of the UN Convention and the African Charter
• describe the key differences and similarities between the UN Convention and the African Charter
• understand the relevance of the UN Convention and the African Charter to the health worker’s role.

1.3 United Nations Convention on the Rights of the Child

The UN Convention is a comprehensive human rights treaty. It sets out minimum legal and ethical standards for all children, as well as goals to aspire to. In practice, the Convention is a vision for children, backed up by legal standards. It was drawn up in the UN by nearly all the countries of the world, including East African countries, because previous human rights conventions did not address the specific situation of children. The UN Convention was drafted to meet this lack of provision, and was adopted by the UN in 1989. It has now been ratified by nearly every country in the world: indeed, it is the most ratified international human rights convention in history.

The Convention:

• defines a child as a person below the age of 18 (unless majority is attained earlier)
• applies to all children without discrimination on any grounds
• identifies children as requiring measures of special protection and support
• recognises the importance of family, community and culture in the upbringing, protection and overall well-being of a child.

1.4 The ‘3 Ps’

To help understand the UN Convention more easily, it is often divided into what are commonly called the ‘3 Ps’: these are the rights to Provision, Protection and Participation.

1.5 The interconnected and indivisible nature of rights

Children’s rights are interconnected and indivisible. This may sound complicated but it means that they are all linked together and all equally important. Together they create a complete framework of rights that, if fully respected, would promote the health, welfare, development and active participation of all children.

To give two examples of this:

1. It is not possible to tackle violence and sexual exploitation against children without also addressing the violation or neglect of rights that expose children to:
   • violence
   • poverty
   • lack of access to education
   • discrimination
   • racism
   • prejudice
   • failure to listen directly to and take seriously what children say about their lives.
2. Children’s right to optimum health and development cannot be fulfilled without a commitment to address their rights to:
   • an adequate standard of living
   • decent housing
   • protection from economic exploitation
   • protection from exposure to harmful work
   • information to help them make informed choices
   • information to help them protect themselves.

The fulfilment of all rights is essential for children’s optimum health and development. There is often a tendency to view physical needs as having priority. Clearly, at one level it is true that without food children will die. However, it is also true that without education or play, children’s potential cannot be realised. And without respect and freedom from discrimination, their psychological and emotional well-being will be impaired. Children’s rights are mutually interdependent: none takes precedence over another.

1.6 Duties and responsibilities

One of the key aspects of a person having a right is that there is a corresponding responsibility on someone else to ensure that the right is fulfilled or respected. Children’s youth, vulnerability and lack of power mean that they are dependent on adults to ensure that their needs and rights are met. This places responsibility on adults to create the necessary conditions to ensure this happens.

The UN Convention describes governments as the primary duty bearers. This means governments, more than any other institution or organisation, have both the duty and the responsibility of fulfilling the rights of children. These responsibilities include the fulfilment of rights for individual children; for example, access to health care and education. They also include the development of public policies that positively influence children’s health and development; for example, adequate housing, safe transport, protection of the environment, a healthy economy and the elimination of poverty.

Many other groups also have responsibilities, including local authorities, health service providers, communities, parents and other caregivers. The UN Convention provides some guidance on the different responsibilities of governments and families in ensuring children’s rights are realised. For example, it emphasises that governments must respect the role of parents or caregivers as having primary responsibility for the guidance, upbringing and development of the child.

However, the UN Convention also stresses that the best interests of the child will be the basic concern. In other words, parents and caregivers must always take into account the child’s best interests in all decisions and actions that affect the child. And this means ensuring that their rights are respected. This includes, for example, ensuring that both boys and girls are provided with equal shares of food within the family, or not disciplining children using physical violence. A parent’s role is to promote the full, healthy development of their children, taking into account their age, abilities and evolving capacities. Parents should ensure that the child’s physical, psychological, social and spiritual needs and rights are met.

A brief overview of responsibilities of key duty bearers are outlined in Figure 1.1 below.

Figure 1.1 Responsibilities of key duty bearers

An old African proverb (Kiswahili) – It takes a village to raise a child

In relation to health, for example:

• The government has a responsibility to ensure that sufficient resources are allocated for health care services, training of doctors and nurses, and ensuring that services are available for all children, wherever they live in the country.
• A hospital or clinic has a responsibility to provide a professional, efficient and inclusive health service for all children who need information, advice and treatment regarding their health.
• Health workers have a responsibility to treat all children with respect, without discrimination, and to ensure that the children are as fully involved in their own health care as possible.
• The family or caregiver has a responsibility to provide, as far as possible, a healthy environment for the child to grow up in, with sufficient food, care and shelter, and to ensure s/he gets access to health care whenever needed.

Children also have responsibilities:

• To themselves – to do whatever they can to ensure their own safety, health and learning.
• To other children – to be caring, responsive and protective of other children and not act in ways that prevent their rights being realised; for example, bullying, or disruptive behaviour in school.
• To their families – to contribute to the life of the family, support their parents and show appropriate respect for elders.
• To their community – to contribute positively and as far as possible towards community life and their own environment.

However, it is important to remember that rights are ‘inalienable’ – this means that they cannot be taken away. Rights are not dependent on children exercising responsibility. For example, children cannot be denied the right to health care because they have acted in ways that place their health at risk.

1.7 The Committee on the Rights of the Child

The Committee is an international body of 18 independent child rights experts. They are elected by the governments that have ratified the UN Convention. Each member of the Committee serves for four years, and can be re-elected at the end of that time. Their task is to monitor governments to see if they are taking the necessary actions to ensure the rights of children.

Governments who have ratified the UN Convention are required to produce a report for the Committee every five years. The Committee reviews these reports, and encourages national non-governmental organisations (NGOs), coalitions and other expert bodies to submit reports highlighting the gaps and challenges to respecting and realising children’s rights in each country. The Committee meets with a delegation from the government and, after analysis and discussion, it produces recommendations to the government. The government is then expected to act on these recommendations.

1.8 African Charter on the Rights and Welfare of the Child

The African Charter on the Rights and Welfare of the Child (ACRWC) was adopted in July 1990 by the Organisation of African Unity (OAU), now the African Union (AU). The Charter came into force on 29 November 1999. Its main purpose was to adapt the rights contained in the UN Convention in order to address the particular challenges facing the African child, and also to encourage the Convention’s implementation. The content of the Charter is similar to that of the UN Convention: many of the rights are the same but it does differ in a number of ways.

The key differences between the African Charter and the UN Convention are that the Charter:

• prohibits child marriages
• insists on 18 as a minimum age of marriage
• requires that all marriages are registered in an official registry
• requires that pregnant girls have the right to continue their education
• includes a reference to protection from Apartheid
• insists that no child under 18 years can be recruited into the armed forces or take part in hostilities
• has no references to the right of a child to an adequate standard of living
• includes an Article setting out the responsibilities of children (this is not included in the UN Convention)
• includes an Article on the rights of children of imprisoned mothers (again absent from the UN Convention)
• makes more explicit reference to the family as the natural unit and basis of society.

Like the UN Convention, the African Charter also provides for an independent committee to monitor governments’ progress in implementation. It is called the African Committee on the Rights and Welfare of the Child. It has 11 members who are elected for five years, and governments must submit reports to them every three years.

Look at the two pictures below. According to the African Charter:

• Should a child be involved in armed conflict?
• Does a young mother have the right to continue with her education?

 

1.9 Guiding principles of the UN Convention and the African Charter

The Convention and the Charter contain four rights that have also been adopted as guiding principles. They are:

• The right to non-discrimination (Article 2)
• The best interests of the child must be a primary consideration (Article 3)
• The right to life and optimum development (Article 6)
• The right to be heard and taken seriously (Article 12)

In other words, these four rights must guide the way all other rights are implemented. This means that, for example, when looking at the right to health, the guiding principles must inform the way you treat a child, and the way services are run.

The right to non-discrimination

All rights in the UN Convention apply to all children without discrimination on any grounds.

In order to fully realise the right to health for all children, governments must ensure that children’s health is not undermined as a result of discrimination, such as:

• Gender-based discrimination including female infanticide, discriminatory infant and young child feeding practices, gender stereotyping and unequal access to services. Attention should be given to differing needs of girls and boys, and the way in which cultural attitudes and practices affect their health and development.
• Harmful gender-based practices, such as female genital mutilation or scarring that undermine the right to health of girls and boys, should be given more attention by health practitioners.
• Children in disadvantaged areas, like refugee camps and rural areas, may receive a poorer service.

All these factors should be considered by governments when developing programmes and policies that work towards ensuring equity.

The best interests of the child

This Article and guiding principle requires that all public and private organisations have to make sure that the best interests of the child is a primary concern when they are taking action that might affect them. This requirement obviously applies to health workers and health services. For example, a decision to treat a child must always be made in his or her best interest and not just to contribute to research findings or to provide a doctor with more experience.

Decisions about the management of children’s hospital wards must be made in the best interests of the child, not for the convenience or efficiency of the staff. This does not mean that the best interests of children is the only consideration: other people’s interests must also be taken into account. However, health authorities and professionals must always consider the potential impact of their actions on children and seek to ensure that children’s interests are given serious attention.

In order to try to decide what is in a child’s best interests in any given situation, it is helpful to think about what rights are involved and how best to protect them. For example, before giving an injection to a child who is capable of understanding, it will be in her or his best interests to provide them with information about what is going to happen, and why the injection is needed. You can also ask them if there is anything you can do to make them feel less anxious and tense. In other words, respecting a child’s right to information and to be heard will be in their best interests.

The right to life and optimum development

This Article stresses the right of every child to life, survival and development. It means that governments must ensure that health services are designed to protect the lives of children. But it goes further than this. Governments must also try to create an environment in which children’s development can flourish. It means that the lives of all children must be equally protected, irrespective of disability, gender, ethnicity or any other factors.

This does not always happen. For example, in a recent consultation with young people in Tanzania for this course, they described examples of albino children who were thought to be affected by a curse and injected with overdoses of drugs so that they would die.

Look at the picture below. What does this child require for optimum survival?

The right to be heard and taken seriously

Children have the right to be able to express their views on all matters affecting them and to have those views taken seriously, in accordance with the child’s age and maturity. This does not mean that you must do whatever children want. However it does mean that their feelings, concerns and ideas should be taken into account when you are making decisions about them. This involves both listening and taking on board what the children say.

1.10 Summary

1. The UN Convention and the African Charter contain rights relating to the provision of services, such as education and health; protection from harm, such as violence and exploitation; and participation, including the right to be heard and to be given information.
2. Four general principles of the UN Convention and the African Charter need to inform the realisation of all other rights: non-discrimination, maximum survival and development, the best interests of the child and child participation.
3. The UN Convention and the African Charter both address the wide-ranging rights of children, but the African Charter has adapted some of those rights to address the particular situation of children in Africa.
4. All rights are interconnected and indivisible.
5. There is an international body called the Committee on the Rights of the Child, which is responsible for monitoring how far governments are progressing in implementing the UN Convention. A similar body exists for the African Charter.
6. The rights contained in both the UN Convention and the African Charter have direct relevance for the role of health workers, and need to be understood and addressed in your day-to-day work.

1.11 Self-assessment questions

1.12 Answers to activities

2 National laws and policies

Key words: Act, Constitution, Law, Policy

2.1 Introduction

In the last study session you learned about the international and regional laws that govern children’s rights. In this session we will look at some of the measures that have been introduced in Ethiopia, Kenya, Tanzania and Uganda to implement children’s rights into national laws. All four countries have introduced laws that incorporate the key rights and principles outlined in the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. They set out the rights of children, the responsibilities of governments to protect those rights and the penalties associated with failing to respect them.

The study session will focus on those areas of the legislation that are of particular relevance to health workers. It is important to understand what rights children have and how the law protects those rights. This knowledge will help you to understand how to respect children’s rights in your day-to-day work, and how to take action if you see that children’s rights are not being respected by others.

2.2 Learning outcomes

When you have studied this session, you will be able to:

• define and use correctly all the key words used in this study session
• explain why it is important to introduce national laws and policies to protect children’s rights
• understand how the laws and policies in your country provide for children’s rights to care, to protection from violence and abuse, to information and to be heard
• demonstrate your understanding of the relevance of these laws and policies for your practice as a health worker.

2.3 Understanding the laws and policies that protect children’s rights in East Africa

Legislation

A law can lay out in much more detail how the provisions of the UN Convention and the African Charter are expected to be applied in practice in a particular country. National laws can also provide a means through which children and their families can hold governments, and other duty bearers, to account on the commitments they have made on children’s rights. For example, the UN Convention states that every child has a right to free primary education. However, only if a government introduces this provision into national legislation is it possible for individuals to challenge the government, and seek justice in court if necessary, if no free school place is available.

Laws are introduced through Acts of Parliament. The four countries of Ethiopia, Kenya, Tanzania and Uganda have each introduced Acts of Parliament that establish a broad range of children’s rights. The Acts also set out who is responsible for protecting children’s rights, and introduce the bodies with responsibility for overseeing that protection; for example, National Councils for Children’s Services, or juvenile courts.

Constitution

All four countries have a constitution, and in Ethiopia, Kenya and Uganda the constitution makes specific reference to children’s rights. A constitution is a set of fundamental principles, a framework of laws and established principles according to which a state is governed. In most countries any amendment to a constitution is designed to be a difficult process in order to give the constitution greater stability.

All laws and policies must comply with the constitution. For example, the Kenyan Constitution 2010 states that every child has the right:

This means that it is not possible to introduce a law that undermines or reduces that right.

Policy

Once a law is enacted, it is usually necessary to introduce a policy that describes in more detail exactly how the provisions of the law must be applied. For example, while a law can establish the right of every child to health care, a policy will be needed to provide guidance on issues such as:

• the overall goals for the health of citizens
• the priority areas
• the budgetary allocation
• the organisation and structure of the health system
• how health care will be delivered
• the level of service to which individuals are entitled
• who is responsible for what aspects of health care.    

Figure 2.1 shows how each of these layers is needed to provide a secure basis for children’s rights. The final step is that practitioners in health care (as well as those in education, the courts, the police force and all other services) ensure both the law and the policy are implemented for the benefit of children.

Figure 2.1 The layers needed to provide a secure basis for children's rights

Kenyan Parliament, Nairobi

Ugandan Parliament, Kampala

Although these national laws on children cover many different areas of rights, we will focus in this study session on four of the key provisions that are of particular relevance to health workers – a child’s right to be:

• cared for and looked after
• protected from violence and abuse
• given information
• heard and involved in health care decisions.

2.4 The law and the child’s right to be cared for and looked after

Children, because of their vulnerability and lack of power, require special care and protection to enable them to develop to their full potential. The UN Convention therefore introduced a number of responsibilities obliging parents and governments to provide that care and protection. For example:

• The obligation to give the child’s best interests primary consideration (Articles 3 and 18)
• The responsibility of parents or guardians for the upbringing and development of children (Article 18)
• The responsibility of governments to provide assistance and support to parents to help them care for their children (Article 18)
• The right of children to special protection and assistance if their parents cannot care for them (Article 20)
• The right of children to an adequate standard of living, and the responsibility of governments to provide help where necessary with nutrition, clothing and housing (Article 27).

Many of these rights and responsibilities have been incorporated into national legislation in Ethiopia, Kenya, Tanzania and Uganda. The overall aim of these rights and responsibilities is to ensure that children achieve their best possible development, and are able to live constructive lives and participate actively within their communities.

Key provisions

The following table provides an overview of some of the key provisions that protect children’s rights in national law.

You will see from the table that in all four countries the laws describe situations not in terms of children’s needs, but in terms of the obligations to respond to the fact that children have rights. The laws also make clear that both parents and governments have responsibilities for ensuring the care and well-being of children.

Role of family and State

The family is recognised as playing a unique and vital role in the lives of children. These national laws all reflect the UN Convention views that the family is the fundamental group of society and the natural environment for the growth and well-being of its members.

However, the family can only fulfil their role if the government creates the necessary environment for the protection of children’s rights. For example, while parents have the primary responsibility for ensuring the health of their children, they can only do this if the government fulfils its responsibilities to provide access to health care, clean water, sanitation and housing. Such assistance may include, for example, free health care for children under five years of age, or cash transfers to vulnerable families including those with disabilities.

The aim is to strengthen families’ capacities to take care of their children. Parents, for their part, must then respect their child’s right to health by complying with the law.

2.5 The law and the child’s right to protection from violence and abuse

Article 19 of the UN Convention and Article 16 of the African Charter define violence as including all forms of:

• physical or mental violence
• injury or abuse
• neglect or negligent treatment
• maltreatment or exploitation, including sexual abuse.

Despite this right to protection in these articles, there is significant evidence of violence against children across East Africa. Widespread social and cultural attitudes and practices condone violence as a way of disciplining children. Violence and abuse is committed primarily by those closest to the children – parents, family members, neighbours and peers.

In addition, the UN Study on Violence against Children (2006) revealed that children in Africa run a high risk of violence in many different settings, including child-centred organisations. Children receiving social, educational, health and other services are not adequately protected from abuse and exploitation by staff and associates, as well as by the community at large.

It is important to note that the Committee on the Rights of the Child has stressed that no violence against children is acceptable, including corporal punishment.

In response to their international obligations under both the UN Charter and the African Charter, all four countries have adopted provisions that incorporate into national laws the right of children to protection from violence, although the scope of the provisions varies.

You will see from this brief overview of the laws that while all the countries in East Africa have introduced some protections for children, not all of them explicitly prohibit all forms of violence against children.

A classroom in kenya

Why health workers need to know the law

Research shows that children who have not experienced violence are less likely to act violently, both in childhood and when they become adults. More than 150 studies on the impact of corporal punishment, for example, show that it is associated with a wide range of negative outcomes, while no studies have found evidence of any benefits (Global Initiative to End All Corporal Punishment of Children, 2013).

Effective prohibition contributes to the prevention of domestic violence, mental illness and antisocial behaviour, and supports the well-being, education and positive developmental outcomes for children. Therefore preventing violence in one generation reduces its likelihood in the next.

However, a major challenge facing health workers in the region is the poor enforcement of the laws and policies, and the extent of mistreatment of the child within the family.

The introduction of legislation to provide protection is only the first step. There is also a need for policies to promote the implementation of the law, as well as mechanisms through which the law can be enforced. It is important to bear in mind the issues raised earlier concerning parental and children’s rights. The law does, for example, restrict parental rights to use harsh physical punishment to discipline their children. As a health worker, you will be a witness to the harm caused to children as a result of such punishment. You need to be clear about the right of children to protection from such harm, and your legal and ethical responsibility to protect them from further harm.

You also need to be familiar with the policy – the local mechanisms for reporting, referring, investigating and eventually treating. At the same time as addressing the right to protection from harm, you must also have a regard for the child’s right to express their views and to do so in private. The right to be heard and taken seriously can contribute significantly to the prevention of all forms of abuse in the home and the family.

A serious commitment to ending violence against children requires comprehensive policies at all levels of society to ensure that any laws that have been introduced are actually implemented on the ground.

2.6 The law and the child’s right to information

Article 17 of the UN Convention on the Rights of the Child provides that children have a right to information. At national level, a child’s right to information is not explicitly stated in the laws in any of countries in the region. However, all four countries have very clear legislation affirming a child’s right to basic education, which is a key means by which children acquire information.

As a health worker, there are three key aspects you should understand in relation to a child’s right to information:

• Information about rights: Children cannot exercise their rights unless they know that they have rights, what those rights constitute and where to get assistance in case of any violation of their rights.

  In relation to health, for example, children need to know about what the right to health means, their right to protection from violence, their right to be involved in decisions that affect them, and if and when they are entitled to give consent to their own health care and treatment.

  The Committee on the Rights of the Child emphasises the importance of human and child rights education in the school curriculum (CRC, 2001). In Kenya, for example, the government has incorporated child rights education as a primary topic to be covered within social studies in the primary level education curriculum.

• Access to health education and information: Education and access to health-promoting information can play an important role in protecting children and enhancing their capacities to make informed decisions in relation to their own health care.

  As a health worker, you can play a key role in ensuring that children have the necessary health knowledge and skills to make positive choices and live healthy lives, as well as helping children understand their rights in relation to health care and protection. This might include, for example, information about:

  • how they can lead healthy lives
  • sexual and reproductive health
  • HIV/AIDS awareness
  • nutrition
  • smoking
  • alcohol
  • illegal drugs
  • physical and psychological development.

  Health workers can also develop preventive and promotional materials in forms that the child understands and that are appropriate to the child’s evolving capacities. This can be done in partnership with children themselves. Children can also be provided with advice on where they can go for further information and help.

• Protection from harmful media and information: Children have the right to protection from harmful information. Some laws exist to provide guidance on the type of information that children can access or be exposed to. For example, in Kenya, exposure to obscene materials or pornography is prohibited. However, many children do have access to harmful or pornographic materials; for example, through internet cafes. This exposure may have an impact on levels of sexual violence, and vulnerability to abuse.

2.7 The law and the child’s right to be heard and to be involved in health care decisions

As you learned in the previous study session, Article 12 of the UN Convention states that every child capable of forming a view has the right to express that view and have it taken seriously in accordance with age and maturity. This provision is generally known as participation of the child. It has been incorporated into the national laws in East Africa as follows:

• Ethiopia: Article 29 of the Constitution enshrines the right of every citizen to freedom of expression and access to information. The Revised Family Code also recognises the principle of child participation in some processes. For example, in adoption, the Court must consult the child and seriously consider his or her opinions (Article 194/3/a). There is also a discretionary power for the court to consult the child before deciding on the appointment or removal of guardians and tutors of the child. Finally, where there are disputes between parents on the matter of child custody, the court is expected to make a decision after hearing the opinion of the child.

• Kenya: The Children Act requires that in any decision made by the Children’s Court, it must have regard to the ascertainable wishes and feelings of the child, with reference to the child’s age and understanding. The Court can also order that the child has legal representation. The wishes and feelings of the child must also be taken into account when determining custody of the child. An adoption order requires the consent of the child if she or he is 14 years or over.

• Tanzania: The Law of the Child Act states that a child has the right to an opinion, and that no one can deprive a child capable of forming a view of the right to express an opinion and to participate in decisions that affect him or her. In addition, the Act requires that social welfare officers involved in care and protection cases must consult with the child when planning for the child’s future. When courts make care or supervision orders, children must be interviewed by social welfare officers if the children are of sufficient age and maturity and their views reported to the court. In parental custody disputes the views of the child must be taken into account. In adoption cases the wishes of any child capable of forming an opinion must be taken into account, and the consent of a child aged 14 and over must be given before an order can be made.

• Uganda: A guiding principle of the Children Act is that in making any decision concerning a child, the courts or any other person shall have regard in particular to the ascertainable wishes and feelings of the child concerned, and they must be considered in the light of his or her age and understanding. When making reports to the court in relation to supervision or care orders, social welfare officers are required to interview the child if he or she is of sufficient age and understanding. Social welfare officers are also required to bear in mind the wishes of the child in any follow-up work once the order is made. In adoption, the wishes of any child capable of forming an opinion must be taken into account, and the consent of a child aged 14 and over must be given before an order can be made.

Overall, you can see that many measures have been taken in all four countries to try to ensure the right of the child to be heard. Although there are no provisions that introduce specific rights in respect of being heard in health care decisions, in Tanzania and Uganda there is a general recognition in law that children have a right to be heard in all matters affecting them, and this extends to the field of health.

In Ethiopia and Kenya, where the provisions are related to specific proceedings, there is recognition of the fundamental importance of listening to children when key decisions concerning them are being made. So it is clearly in line with government policy in all four countries, as well as with the UN Convention, that efforts should be made to ensure that children are listened to in matters affecting their health care. This will apply, for example, in the following ways:

• Health workers generally tend to talk with the parents about the child’s condition, what treatment is needed and why, how it will be provided and when, and what will be the impact or consequences, while excluding the child from that conversation. The right to express views requires that children are directly involved in those discussions.
• Children sometimes need access to confidential medical counselling and advice, regardless of age, and without them having to get parental consent. It is important to recognise that the right to counselling and advice is distinct from the right to give medical consent and should not be subject to any age limit.
• Children will sometimes disclose information that indicates that they are seriously at risk of harm – for example they are being sexually abused – but they do not wish this information to be passed on to anyone else, or acted on. In these circumstances, it will be necessary for a health worker to consider how to balance the right to confidentiality with the right to protection. The health worker needs to appreciate that children should be invited to contribute their views and experiences to planning and programming of services for their health and development.
• Although health workers must comply with the laws in relation to consent to treatment, the philosophy of the UN Convention requires health workers to recognise the need to gradually involve children more fully in decisions relating to their health. Health workers also need to help parents recognise the importance of actively involving their children in decisions about their health care.

2.8 Summary

This session was designed to help you understand how international human rights laws are translated into the national level to ensure the effective protection of children. In summary:

• In Ethiopia, Kenya, Tanzania and Uganda, the governments have introduced laws and policies to translate the UN Convention and the African Charter into national legislation.
• National laws and polices provide more detailed measures on how the rights of children must be respected.
• The child’s right to care and protection is a shared responsibility at many levels, including, for example, governments, parents and health workers.
• Although the family has the primary responsibility for the care of the child, the law allows governments to intervene to protect the child when it is in her or his best interests to do so.
• All four countries have national laws that provide protection to children from violence.
• All four countries have national laws that recognise the right of the child to express their views and have them taken seriously.
• Health workers have a key role to play in protecting children, providing them with appropriate information to make informed choices and ensuring that their voices are heard.

2.9 Self-assessment questions

2.10 Answers to activities

3 The right to health

Key words: acceptability, accessibility, availability, health, health services, holistic, quality

3.1 Introduction

In the first two sessions in this module you learned about the international, regional and country laws relating to the rights of children. It should be clear that many of the rights in the UN Convention and the African Charter are directly relevant to health workers but obviously your role means that the right to health is particularly important. This session will look at a child’s right to health in more detail.

Both the UN Convention and the African Charter address the right to health. It is a fundamental social right that applies to every child. This study session will explain what the right to health actually means. It will describe how the right to health extends beyond the direct provision of health services, and the relationship it has with other rights. It introduces the idea of an approach to health that shows how children’s right to health can only be fully realised if all other rights are respected. The session will also outline the responsibilities of governments, health services and individual health workers.

3.2 Learning outcomes

When you have studied this session, you will be able to:

• define and use correctly all the key words used in this study session
• describe the meaning of the right to health
• understand the right to health at all levels of the health system
• describe the key features of the right to health
• understand your own role in ensuring the right to health for children.

3.3 Defining the right to health

It is important to understand what is meant by the right to health. It is not the same as the right to be healthy because good health is influenced by many factors that are outside the direct control of the State, such as an individual’s genetic make-up.

The right to health is generally associated with the provision of health services and facilities. This includes access to immunisation programmes, maternity care and oral rehydration. It also depends on the availability of doctors, nurses, clinics and hospitals. These provisions are obviously very important, but the right to health extends much further. Health is dependent on many other factors, and it is just as important to address these other factors if children are to realise their right to health.

In Study Session 1 you learned how rights are interconnected and this is true for health as for all other rights. Health cannot be realised without these other rights being fulfilled, such as safe water, an adequate standard of living, housing and education, freedom from violence and discrimination, and access to information. For example:

• HIV/AIDS is a condition that needs medical treatment. However, its impact on a child’s life extends far beyond its medical implications. Children living with HIV/AIDS can face orphanhood, hunger, discrimination and exclusion from school, all of which will impact on the child’s health and well-being.
• A baby born to a mother with no education has a much higher chance of dying than one born to a mother with a higher level of education. This difference is not simply because of lack of access to health care. It arises because other fundamental rights are not being fulfilled. The low status of both women and children means that they are not always listened to when they say they are in pain or in need of treatment, often with a negative impact on their health.

If the right to health is not fulfilled, this will prevent the realisation of other rights. For example, if a child is sick and cannot access the treatment she needs, this will prevent her from going to school. Physical and mental health enables children to learn, play and participate fully in society.

3.4 Unpacking Article 24, the right to health

Article 24 of the UN Convention does not establish an unconditional right to be healthy. However, it does specify a range of measures needed to fulfil the right to health. The obligations in Article 24, and the challenges in meeting them, include the following:

• To diminish infant and child mortality (Article 24(2a))

  This Article imposes obligations on governments to take appropriate measures and implement policies to reduce mortality rates throughout childhood. Traditionally, the emphasis has been on tackling deaths among children under five years of age. The continuing death of millions of children each year from preventable causes remains unacceptably high. A child born in a developing country is over 13 times more likely to die within the first five years of life than a child born in an industrialised country. In sub-Saharan Africa, on average, one child in every six dies before their fifth birthday (Closing the Gap in a Generation: Health Equity through Action on the Social Determinants of Health, WHO/Commission on the Social Determinants of Health, 2008).

  By contrast, if the infant mortality rate in Iceland was applied to the whole world, only two babies would die in every 1000 born alive (World Health Organization (WHO) (2007c) World Health Statistics 2007, Geneva, WHO). There would be 6.6 million fewer infant deaths in the world each year. However, in a growing number of countries, it is adolescents who are particularly at risk, with 1.4 million deaths occurring among 10- to 19-year-olds every year (World Health Organization (2009) Child and Adolescent Health and Development Progress Report: Highlights, p. 16).

• To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care (Article 24(2b))

  The UN Convention requires governments to invest in the provision of health care services, including mental health services, to address the health care needs of all children. However, according to the World Health Organization, in 12 out of 32 countries in Africa less than 50 per cent of people have access to health care services. In particular, in many countries there is a lack of available mental health services for children. This is despite very high levels of need, particularly in countries where there is or has been conflict or instability.

• To combat disease and malnutrition (Article 24(2c))

  A large number of children in poorer communities die before the age of five due to a combination of communicable diseases, malnutrition, unsafe water and sanitation. Some risks can be reduced through immunisation, which therefore ought to be made available to all young children.

  Oral rehydration therapy can save lives in the case of diarrhoea. It should be provided by health facilities or parents should be given advice about how they can administer rehydration at home through simple technology. The most fundamental problem is malnutrition, which globally is the cause of one-third of all deaths of children under five.

• To provide pre and post-natal care for mothers (Article 14(2d))

  Maternal mortality and morbidity constitute grave violations of the human rights of women and girls. It poses serious threats to children’s rights to life, survival and development. Thirty-seven per cent of deaths of children under the age of five occur in the first month of life. Improved neonatal and maternal care could save many newborns. Two-thirds of both neonatal and young child deaths – over 6 million deaths every year – are preventable.

• To provide knowledge of child health and nutrition, breastfeeding, hygiene and prevention of accidents (Article 24(2e))

  Despite being the cheapest and healthiest way to feed a baby, more than one million babies worldwide die every year because they are not breastfed or are given other foods too early (UNICEF, 2012). Millions more live in poor health, contract preventable diseases and battle malnutrition. Globally, only 35 per cent of children under four months are exclusively breastfed (World Health Organization, n.d.).

• To develop preventive health care, guidance for parents and family planning education and services (Article 24(2f))

  Prevention is central to primary health care. Interventions should promote healthy behaviour. They should address the main health challenges facing children within the community and the country as a whole. These challenges include diseases as well as accidents, violence, substance abuse and mental health problems. Access to parenting information and reproductive health services are vital to improving the health of women and children.

• To abolish traditional practices prejudicial to the health of children (Article 24(2g))

  Many traditional practices are harmful to children’s health and development. The Committee on the Rights of the Child have made it clear that practices such as female genital mutilation are a violation of the right to health, and that efforts need to be made to prohibit them through legislation and community sensitisation.

3.5 A holistic approach to the right to health

A holistic approach to the right to health involves looking at the whole child and recognising that the best possible health can only be achieved if health is looked at alongside other rights.

You can think of this as being at three different levels – the individual child, the health services and the wider society. Investing in health requires investment on all three levels:

1. At the level of the individual child

   How do health services treat individual children in terms of respect for their dignity?

   How do health services respect a child’s right to be involved in decisions and to make their own choices in line with their age, maturity and competence?

2. At the level of health services

   Are all the services which children require, available to every child without discrimination?

3. At the level of the environment

   Are all necessary measures being taken to create an environment in which every child can be as healthy as possible?

   Are all necessary measures being taken to provide every child with the opportunity to develop as fully as possible?

In other words, the right to health needs to take into account:

• the experience of the individual child
• the quality, range and scope of health services
• the environment in which the child lives.

As you look at each of these three areas in more detail, which are also shown in Figure 3.1, note what you think your role as a health practitioner is.

Figure 3.1 Three areas that must be taken into account when considering the right to health

At the level of the individual child

The behaviour of nurses and doctors towards children can have a major impact on their health. Too often, children are treated without respect, their views are disregarded, they are denied information and they are not involved in decisions about their own care. This makes it harder for children to talk to doctors or other health workers and to get the treatment they need. Negative attitudes can contribute to fear, distress, anxiety and helplessness in children, with negative impact both on their access to care and their potential recovery.

At the level of health services

When providing health services, a rights-based approach to health needs to address the following inter-related elements illustrated in Figure 3.2. Each element is explored in more detail below.

Figure 3.2 The inter-related elements of a rights-based approach to health services

At the level of the environment

Much of the work needed to address the optimum health and development of children lies beyond the health sector itself. Although access to health services is obviously important, health care alone will not achieve the right to health for every child.

Many other aspects of government policy, or indeed, lack of policy, impact on the lives of children and their health and well-being. A commitment to ensuring the realisation of the right of every child to health must adopt a much wider approach. It should tackle the many social, economic and cultural factors that serve to harm children and deny them healthy lives. As health professionals, you will see much of the harmful impact that these policies or practices have on children’s lives.

3.6 Summary

1. Both the UN Convention and the African Charter have articles that confirm children’s rights to health.
2. There are many different elements to the right to health. It is not only about health care – it is also about issues such as combating malnutrition and preventing accidents.
3. The right to health cannot be separated from other rights.
4. The right to health for a child can be thought of at different levels – individual, health care services and systems, and the environment.
5. At each of these levels there are roles to be played by health workers.

3.7 Self-assessment questions

3.8 Answers to activities

Activity 3.1: Children’s rights relevant to health

You will have easily identified Article 24: the right to enjoy the highest attainable standard of health and health care facilities, with specific obligations to:

• diminish infant and child mortality
• provide health care to all children, with an emphasis on primary health care
• combat disease and malnutrition, through the provision of adequate nutritious foods and clean drinking water
• ensure appropriate prenatal and post-natal health care for mothers
• provide knowledge of child health and nutrition, breastfeeding, hygiene and how to prevent accidents
• develop preventive health care, guidance for parents, and family planning education and services
• abolish traditional practices prejudicial to the health of children.

You will remember that you looked at the general principles in the previous session, and that they need to be considered in the implementation of all other rights.

Article 2: the right to non-discrimination applies to access to health care and the underlying determinants of health.

Article 3: the best interests of the child must be a primary consideration in respect of individual decision making, in the design and delivery of health services, and in respect of public policy impacting on child health.

Article 6: the right to life and optimum development.

Article 12: children have the right to express their views on all aspects of their health and health care, their views being given due weight in accordance with their age and maturity.

Other Articles that are also relevant to a child’s right to health:

Article 7: the right to birth registration without which many children are unable to access health care.

Article 19 : the right to protection from all forms of violence and abuse.

Article 23: the right of children with disabilities to health care services that promote their fullest possible social inclusion.

Article 26: the right to benefit from social security.

Article 27: the right to an adequate standard of living for proper development.

Article 31: the right to rest, play, recreation, leisure and access to cultural life.

Article 32: the right to protection from economic exploitation or hazardous work.

Article 34: the right to protection from sexual exploitation and abuse.

Article 39: the right to rehabilitation following neglect, exploitation or abuse.

Article 42: the right to know about the Convention on the Rights of the Child and its implications for their lives.

The fact that health is dependent on so many other factors in the wider society is discussed in more detail in Module 4.

Activity 3.2: The individual child

Health practitioners like you, who are informed about children’s rights and understand the experiences of children, can make a positive change at this level that will improve children’s health. These are not changes that require resources but depend more on attitudes (such as the way you talk to children) and commitment.

Activity 3.3: Health services and systems

Although it may seem that some of these factors are beyond the control of most health workers, the issues of quality, non-discrimination and accessibility of information are all things that workers can influence. You can, for example, ensure the environment of the health facility is child friendly – accessible and welcoming, not intimidating.

How you can be non-discriminatory and create child-friendly environments are discussed in Module 3.

Activity 3.4: Health in the wider environment

Some of these issues are ones of public policy, which is the responsibility of local and national government. Even at this level, however, practitioners who work in health or education, and are aware of these issues, can play a part. You could encourage the community to take action around an issue that affects children’s health; for example, around accidents or local pollution.

The impact of these wider factors on health and health workers’ involvement in advocacy and community mobilisation are discussed in Module 4.

Activity 3.5: Accessing care during pregnancy

1. Insufficient measures were taken to try to reduce infant and mother mortality. The life of the mother and the baby were at real risk in this situation. The mother did not have access to primary health care in her local village. It seems she lacked prenatal care, and the availability of services was seriously inadequate.
2. If pregnant women are to get the best possible care, there needs to be effective provision at the community level to provide her with an early diagnosis. Measures need to be in place to provide transport for women who need medical treatment in more complex circumstances. This method of transport should be reliable and properly maintained.

   The mother needs information about her condition, when and where to go for help, and someone at the local level who is able to advise her. The local health workers should be trained to provide supportive and comprehensive prenatal care. They should be able to identify possible risks, and be alert to the need for additional medical treatment and advice.

4 Answers to self-assessment questions

Study Session 1

Study Session 2

Study Session 3

Bibliography

Africa Child Policy Forum (ACPF) (2011) Laws, Policies and Reality for Ending Violence against Children in Ethiopia, Kenya and Uganda, Addis Ababa, ACPF.

Africa Child Policy Forum (ACPF) (2011) The African Report on Child Well-being, Addis Ababa, ACPF.

African Committee of Experts on the Rights and Welfare of the Child (ACERWC) (n.d.) The African Charter on the Rights and Welfare of the Child (ACRWC). Available at http://acerwc.org/the-african-charter-on-the-rights-and-welfare-of-the-child-acrwc/ (Accessed 21 February 2014).

Ahimbisibwe, P. (2012) ‘Pupil loses tooth to corporal punishment’, Daily Monitor, 19 November 2012. Available at www.monitor.co.ug/News/Education/Pupil-loses-tooth-to-corporal-punishment/-/688336/1623344/-/pi4xd2/-/index.html (Accessed 21 February 2014).

Committee on the Rights of the Child (CRC) (2001) CRC General Comment No. 1: The Aims of Education, CRC/GC/2001/1, 17 April 2001. Available at www.refworld.org/docid/4538834d2.html (Accessed 30 March 2014).

Comprehensive Community Based Rehabilitation in Tanzania (CCBRT) (n.d.) Changing lives and communities in Tanzania. Available at www.ccbrt.or.tz/about-us/#c140 (Accessed 21 February 2014).

Global Initiative to End All Corporal Punishment of Children (2013) Summary of Research on the Effects of Corporal Punishment, Briefing Paper. Available at www.endcorporalpunishment.org/pages/pdfs/Summary%20of%20research%20on%20the%20effects%20of%20corporal%20punishment%20April%202013.pdf (Accessed 21 February 2014).

UNICEF (2012) What is the role of nutrition?. Available at www.unicef.org/nutrition/index_role.html (Accessed 21 February 2014).

United Nations (UN) (1990) Human Rights Committee, General Comment No. 18, Non-discrimination, A/45/40(VOL.I) (SUPP). Available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=11 (Accessed 21 February 2014).

United Nations (UN) (2006) Study on Violence against Children, New York, NY, UN.

World Health Organization (WHO) (n.d.) The WHO Global Data Bank on Infant and Young Child Feeding. Available at www.who.int/nutrition/databases/infantfeeding/en/index.html (Accessed 21 February 2014).

World Health Organization (WHO) (2007) World Health Statistics 2007, Geneva, WHO. Available at www.who.int/whosis/whostat2007.pdf (Accessed 21 February 2014).

Acknowledgements

This is one of five modules in the CREATE curriculum on children’s rights education for health care workers in Ethiopia, Kenya, Tanzania and Uganda. It has been developed through a partnership between the MS Training Centre for Development Cooperation based in Arusha in Tanzania, The Open University in the UK and Child Rights Education for Professionals (CRED-PRO), an international programme committed to strengthening the understanding and application of children’s rights in professional practice.

We would like to thank the Oak Foundation in Geneva for its generous funding for the development of this programme and OPITO for additional funding to support advocacy and engagement activities.

CREATE was produced by a team of experts from the four participating countries, including representatives from government, academia, professional practice and the NGO sector. They were led in Child Rights Advocacy by Gerison Lansdown from CRED-PRO and trained and supported by experts in blended learning pedagogy from the CREATE team at The Open University. Many thanks to the governments and agencies who enabled them to participate. The authors are:

• Humphrey Onyango Wandeo, Children Services, Government of Kenya
• Kellen Karanu, Deputy Director of Children’s Services, Government of Kenya
• Kabanda Obed, MD, Executive Director, Action for Community Development (ACODEV), Uganda
• James Kaboggoza Ssembatya, Assistant Commissioner/Children’s Affairs, Ministry of Gender, Labour and Social Development, Uganda
• Hajat Safinah Kisu Museene, Principal, Jinja School of Nursing and Midwifery, Uganda
• Sarah Bunoti, PhD, Lecturer Department of Psychology, Faculty of Education, Kyambogo University, Uganda
• Stella Ayo-Odongo, Executive Director, Uganda Child Rights NGO Network (UCRNN), Uganda
• Yodit Tesfaye, Child Protection and Promotion Officer, Ministry of Health, Ethiopia
• Samrawit Tassew Mekuria, MD, Medical Education Team Coordinator, Ministry of Health, Ethiopia
• Stephen Ataro Ayella, MD, Save the Children, Tanzania.

The contributors of original material are:

• Gerison Lansdown, Co-Director, Child Rights Education for Professionals
• Andy Rixon, Lecturer in Faculty of Health and Social Care, The Open University, UK
• Tony O’Shea-Poon, Head of Equality and Information Rights, The Open University, UK
• Anna Peachey, Deputy Director (Academic) for International Development, The Open University, UK.

We would like to particularly acknowledge the additional material for this curriculum that was produced by TAMASHA in collaboration with District Youth Networks in Temeke (Dar es Salaam), Arusha and Magu. This was research conducted with young people by young people in Tanzania on their experiences of health care.

We would also like to thank those who acted as critical readers for the CREATE curriculum:

• Kate McAlpine, Freelance Consultant, Caucus for Children’s Rights, Tanzania.
• Els Heijnen-Maathuis, Technical Adviser Education, Save the Children International (Uganda)
• Richard Mabala, Director, Tamasha
• Dr Terry DiPaolo, Freelance Consultant
• Dr Helen Yanacopulos, Senior Lecturer in International Development, The Open University, UK.

The CREATE Team are:

• Gerison Lansdown, Co-Director, Child Rights Education for Professionals
• Andy Rixon, Lecturer in Faculty of Health and Social Care, The Open University, UK
• Tony O’Shea-Poon, Head of Equality and Information Rights, The Open University, UK
• Lindsay O’Dell, Senior Lecturer in Faculty of Health and Social Care, The Open University, UK
• Lesley-Anne Long, Deputy Director (Academic) for International Development (until April 2013), The Open University, UK
• Anna Peachey, Deputy Director (Academic) for International Development (after April 2013), The Open University, UK
• Ellen Scott, Senior Project Manager for International Development, The Open University, UK
• Alison Robinson, Senior Operations Manager for International Development, The Open University, UK
• Gail Vardy, Projects Coordinator for International Development, The Open University, UK
• Delphine Mugisha, Training Coordinator, MS-TCDC, Tanzania
• Steven Ndosi, Manager for Cross Cultural Department, MS-TCDC, Tanzania
• Anna Mbwambo, Programme Assistant, MS-TCDC, Tanzania.

Photographs and illustrations:

• Courtesy of Action for Community Development (ACODEV)
• Child-to-Child in collaboration with Unicef Ethiopia, March 2010.

All editing by Learning and Teaching Solutions at The Open University.

The opinions expressed in the CREATE materials are those of the authors and do not necessarily reflect the views of the donor organisations whose generous support made the production of this material possible.

Grateful acknowledgement is made to the following sources:

Cover image: Source unknown.

Illustrations

Page 20: (left) Child with a gun. Used with the kind permission of Invisible Children, Inc.; (right) People of Africa, © Uros Ravbar; Page 23: Portrait of woman from Mursi tribe, Ethiopia, Africa, ©iStockphoto.com/hadynyah; Page 32: Nairobi City, ©iStockphoto.com/ALingbeek; Page 33: Ugandan Parliament, ©iStockphoto.com/mtcurado; Page 41: A classroom in Kenya, ©iStockphoto.com/Britta Kasholm-Tengve.

Every effort has been made to contact copyright holders. If any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangements at the first opportunity.