by Seamus Byrne, University of Liverpool

This short blog post summarises the main arguments I put forward within the Equality and Human Rights Panel at the recent SLSA Conference which was held at the University of Bristol. The paper sought to unpack both the international and domestic impediments which ultimately impede the enforcement of children’s rights and specifically their right to education.

The paper commenced by highlighting the fact that the thematic compartmentalisation of human rights into diffuse areas ranging from the rights of refugee’s to economic, social and cultural rights is a practice which has established itself as the institutional and legal bedrock of the contemporary human rights system. Although such classifications have the benefit of advancing the human rights of individuals who have often been marginalised within both domestic and international legal structures, the question nonetheless arises as to how successful, in real and practical terms, have such rights-bearing instruments been? How have they actuallyadvanced the rights of those they seek to protect? In this regard, the question was posited as to the ability of children to claim, enjoy and enforce many of their rights and in particular their right to education. In problematizing this issue, three core considerations were identified. These included;

a) The failure of the international human rights system to adequately espouse a free-standing right to education for children in their own right. Rather, through the legal and textual dilution of existent education rights, children’s rights are configured in a manner which renders them secondary and subordinate to parental rights, thereby depriving them of any individual compellable legal force.

b) The domestic incorporation of children’s education rights in the UK, replete with legislative and regional variations and imbalances, further nullifies the ability of children to enforce and exercise their rights.

c) The lack of remedial rights for children, a direct correlation of the above mentioned issues solidifies their precarious position regarding the right to education, within both domestic and international human rights.

A. No-Free Standing Right to Education

Despite its ingrained imprint within human rights law, children do not possess an autonomous or independent free-standing right to education.Rather, educationisframed in a manner which often renders it secondary and subordinate to parental wishes.It is argued that such relegation denudes the right (from a children’s rights perspective) of a compellable legal force.  For example, although the Convention on the Rights of the Child guarantees the right to education in articles 28 & 29, its status as an unincorporated treaty under the constitutional design of the UK results in claimants invoking the right to education clause contained in Article 2 Protocol 1 (A2P1) of the ECHR (via the Human Rights Act 1998) to support their legal claims. However, A2P1 ringfences the legal priority of parents in its second sentence by stating; “the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’”. [emphasis added] Indeed, similar parental legal protections are contained in Articles 14(3) of the EU Charter of Fundamental Rights, Article 11(4) of the African Charter on the Rights and Welfare of the Child and Article 13(4) of the Protocol of San Salvador.

B. Domestic Incorporation as a Further Barrier

Education is an autonomous sphere of executive control within the various regions in the UK. However, the legislative latitude which accompanied parliamentary devolution has arguably neither been linear nor equivalent in practice. From a children’s rights perspective, this has resulted in both internal imbalances and regional variations. For example, both Wales and Scotland have introduced legislative measures comprising of the Rights of Children and Young People (Wales) Measure 2011 and the Children and Young People (Scotland) Act 2014, which pursuant to section 1 of both respectively, compel public authorities to have regard to Convention on the Rights of the Child in the execution of their duties. However, no such comparable measures have been enacted in either England or Northern Ireland. Moreover, other discrete areas of domestic education law and policy further entrench parental primacy with regards to children’s education rights. In England for example, parents have the right to withdraw their children from Sex and Relationships Education (SRE) under section 405 of the Education Act 1996. While SRE does not have a statutory basis in Scotland, government guidance nonetheless enshrines the rights of parents to withdraw their children from such lessons. Similar opt-out clauses also exist in Northern Ireland and Wales.

C. Children are Denied a Right to a Remedy

It is argued that the intersection of the above-mentioned realities combines in such a way that it removes the ability of children and young people to further claim a remedy for a violation of their right to education. The legal and lexical make-up of the right to education in many human rights treaties, coupled with its domestic implementation results in the child’s right becoming overwhelmingly subsumed within pre-ordained parental rights. This raises the question as to whose right is it? Is it the child’s right to be educated or the parents right to have their children educated according to their religious and philosophical convictions? Within such a paradigm, the further issue of the child’s right not to believe or adhere to any religious viewpoint becomes apparent.    Nonetheless, as currently framed, children are legally and procedurally estranged from vast aspects of the right to education itself and the ability to enforce it. While the rights and responsibilities of parents cannot be side-lined, neither can the reality that parental equivalence in terms of what is in the child’s best interests does not characterise all parent-child relationships. Thus, an approach which collocates the rights of the chid with the rights of parents in a way which recognises the evolving capacities and maturity of the child is required.