- States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
- In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
- States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.
- Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
– UN Convention on the Rights of the Child
Overview of Article 9
Article 9 of the Convention introduces a series of Articles, 9, 10 and 11 that are very specific to children and which have no exact counterpart in general human rights treaties, outside of the regional child rights context in Africa[1]. The right not to be separated from parents, the right to leave and enter countries for family reunification and the obligation on State Parties to take specific measures to combat the illicit transfer and non-return of children from abroad all work together to protect the child’s right to secure family attachment and relationships. These rights therefore are to be read closely and in conjunction with one another and with other rights in the Convention that deal specifically with the child’s family situation including Articles 3, 5, 18, 20 and 21. The nexus of Articles 9, 22 and 30, particularly as migrant children and indigenous children who have frequently been victims of family disruption is also important. Article 9 serves as a gateway to these specific rights of children and sets out two main principles: i) children must not be separated from their parents unless the separation is necessary in their best interests; and ii) the child and parents should not be separated without due process, in any circumstance including child protection or child custody matters [1-3]. It also protects the child’s right to maintain contact with both parents, unless their best interests indicate otherwise and places an obligation on States to keep parents and children informed of any State action that might impinge upon this right of children to be with their parents.
The focus of Article 9 is on separation from parents as it arises within the domestic context and Articles 10 and 11 deal with distinct elements of separation which can occur across international borders [1-3].
[1] See Article 19 of the African Charter on the Rights and Welfare of the child, Adopted in 1990 with a provision on Parent Care and Protection which tracks the language of UNCRC Article 9, fairly closely.
Core attributes of Article 9
The core attributes of Article 9 are:
- No separation from parents unless necessary in the child’s best interests
- No separation from parents without due process before competent authorities
- Right to maintain relations and regular contact with both parents, if separated
- Right to be informed of whereabouts of parent or child if detained
Each of these attributes can be measured in terms of structural or process implementation or in terms of outcomes achieved through implementation as outlined in the table below. Some indicators, for instance the structural ones, may be common to all attributes. Others are common to two or more attributes, while some indicators may be relevant to one attribute only. An attempt has been made to balance the use of objective and subjective data indicators as well as qualitative and quantitative ones.
What did children say?
These are some ideas that children from around the world shared with us during the Global Child Rights Dialogue (GCRD) project:
Relevant provisions within the SDGs
No SDGs provisions have been identified for this article.
Potential sources of data for users of the indicators sets
- Developing Indicators for the protection, respect and promotion of the rights of the child in the European Union, FRA
- Government departments, universities and other training institutions
- International Office of Migration (IOM) data sets on Unaccompanied minors (UAMs)
- National data sets on orphaned and abandoned children
- National data sets on placement of children into State care
- Primary research by national human rights institutions for children
- Primary research by universities and NGOs
- Qualitative research with children on their knowledge of and experience in the exercise of their rights
- Surveys of parents on knowledge of their responsibilities as parents and the right of the child
- UNICEF MICS data
References used for the overview
- United Nations Office of the High Commissioner of Human Rights (OHCHR). (1989). Convention on the Rights of the Child. (Article 9, para 9). Retrieved from https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
- United Nations Children’s Fund (UNICEF). (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed., pp.186). Geneva, Switzerland: UNICEF.
- Nowak, M. (2005). U.N. Covenant on Civil and Political Rights – CCPR – Commentary (2nd ed., pp. 22 and 121). Kehl am Rhein, Germany; Arlington, United States of America: N.P. Engel Publisher.
References used to create indicators
- Annie E. Casey Foundation. (2017). 2017 Kids Count Data Book. State trends in child well-being. Baltimore, United States of America: The Annie E. Casey Foundation.
- Boxall, H., Morgan, A. & Terer, K. (2012). Evaluation of the Family Group Conferencing pilot program, Summary Report (ISSN: 1836-2079). Retrieved from the Australian Institute of Criminology website: https://aic.gov.au/publications/rpp/rpp121
- D’hondt, S. & Péters, C. (2016). National indicators of the rights of the child: Make them count. Retrieved from the Belgian National Child Rights Commission website: https://ncrk-cnde.be/en/projects/nouvelle-traduction-20-indicateurs-nationaux-droits-de-l-enfant/
- International Organization for Migration (IOM), IMO’s Global Migration Data Analysis Centre & UK aid. (2016). Children and unsafe migration in Europe: Data and policy, understanding the evidence base (ISSN 2415-1653). Retrieved from https://missingchildreneurope.eu/annual-reports/
- Missing Child Europe. (2018). Figures and Trends Report 2017. Retrieved from http://missingchildreneurope.eu/annual-reports/categoryid/0/documentid/444
- New Brunswick Child Rights Indicators Framework
- The Child Protection Initiative, Save the Children. (2014). Child Protection Outcome Indicators. Retrieved from https://resourcecentre.savethechildren.net/library/child-protection-outcome-indicators
- United Nations Children’s Fund (UNICEF). (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed., pp.186). Geneva, Switzerland: UNICEF.
- United Nations Office of High Commissioner of Human Rights (OHCHR) (2012). Human Rights Indicators: A Guide to Measurement and Implementation (HR/PUB/12/5). Retrieved from http://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf
Glossary/key words
Best interests
The principle of best interests of the child is a threefold concept: “(a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration … and the guarantee that this right will be implemented whenever a decision is to be made concerning a child… (b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpre-tation, the interpretation which most effectively serves the child’s best interests should be chosen. … (c) A rule of procedure: Whenever a decision is to be made that will affect a … child, the decision making process must include an evaluation of the possible impact (positive or negative) of the deci-sion on the child or children concerned….” (International Organization for Migration, n.d.).
Competent authorities
A ‘competent authority’ in the context of adoption is an adoption agency that is a properly licensed by the law of the State, complies with minimum standards and is established, authorised and supervised by the State to undertake the role of approving applications to adopt (Hague Convention, 1993).
Due process
“The adoption of an individual right to trial in court and detailed minimum guarantees of the accused in criminal proceedings is based on the Anglo-Saxon common law tradition of ‘due process of law’. Article 40 of the CRC accords to a child alleged as or accused of having infringed the penal law the right to a fair trial, and contains basic safeguards such as the presumption of innocence, the right to be informed of the charge, and the right to have the matter determined without delay” (UNICEF Innocenti Research Centre, 2000).
Kinship care
Family-based care within the child’s extended family or with close friends of the family known to the child, whether formal or informal in nature. Informal Kinship Care takes place outside formal child welfare systems, and is essentially a private arrangement within families, usually extended families. Formal Kinship Care describes those arrangements brokered by and approved by a competent authority.
Maintain personal relations
Articles 7 and 8 of the CRC protect the child’s right to an identity including the right to “know and be cared for by his or her parents” and the right “to preserve his or her identity, including … family relations”. Article 9 protects the child’s right not to be separated from his or her parents unless competent authorities determine that it is necessary to do so in the child’s best interest, and even when separated children have a right “to maintain personal relations and direct contact with both parents on a regular basis”. This emphasis on maintaining personal relations with family reappears in several contexts, in articles 10, 19, and 22. It may include maintaining ties through regular visits, through phone calls, video-calls, or other telecommunications methods and also include expediting family reunification, as in the case of unaccompanied migrant children – but not in any case by means of returning a child to a country where there is a real risk of irreparable harm to the child (United Nations Committee on the Rights of the Child, 2005).
Missing child
The United Nations Convention on the Rights of the Child (CRC) defines a child as a “human being below the age of 18.” But a global and standardized definition of a “missing child” does not exist. Instead, a wide range of definitions of “missing children” is used by the authorities worldwide, most of which build their definition around the lack of information on a child’s whereabouts (Sigona, Chagse and Humphries, 2017).
Open adoption
In some countries, records have been unsealed. Indeed, small but growing numbers of adoptive parents establish and maintain communication with birthparents (including visitation rights). This new practice, known as ‘open’ adoption as opposed to ‘exclusive’ adoption, is especially viable in the case of older adoptive children.
‘Open adoptions’, which are grounded in the adopted child’s ongoing relationship with the birth parents, including meeting them in person. Under some jurisdictions, an ‘open’ adoption can end with the child returning to the care of the birth parents.
Supervised access
Supervised Visitation refers to contact between a non-custodial parent and one or more children in the presence of a third person responsible for observing and seeking to ensure the safety of those involved. “Monitored Visitation”, “Supervised Child Access”, and “Supervised Child Contact” are other terms with the same meaning (Supervised Visitation Network, 2019).
© GlobalChild (2020)