PREFACE/ DAVID ARCHARD = v INTRODUCTION = 1
PART I. PARTICIPATION OF CHILDREN GENERAL OBSERVATIONS = 7
CHAPTER 1. PARTICIPATION RIGHTS IN THE UN CONVENTION ON THE RIGHTS OF THE CHILD FIONA ANG, EVA BERGHMANS, MARIE DELPLACE, VALENTINA STAELENS, CAROLINE VANDRESSE and MIEKE VERHEYDE = 9
1. Introduction = 9
2. Article 12 CRC = 11
2.1. Rights holder = 12
2.2. Object = 14
2.2.1. The right to express views freely in all matters affecting the child = 14
2.2.2. The right of the child to have his or her views being given due weight in accordance with his or her age and maturity = 18
2.2.3. The right to be heard in any judicial and administrative proceedings affecting the child, in a manner consistent with the procedural rules of national law = 19
2.3. State obligations = 20
Summarised = 25
CHAPTER 2. REFLECTIONS ON THE CONCEPT OF PARTICIPATION LIEVE CATTRIJSSE and DR. ISABELLE DELENS-RAVIER = 27
1. Introduction = 27
2. Another vision of children = 27
2.1. The pedagogy of Korczak: respect for children in education = 27
2.2. The pedagogy of Korczak and the CRC = 29
3. Interpretation of the concept = 31
4. Towards a culture of participation = 35
CHAPTER 3. TRANSCENDING DISCIPLINES: LEGAL PROFESSIONALS VIEWS ON PARTICIPATION FIONA ANG, EVA BERGHMANS, LIEVE CATTRIJSE, DR. ISABELLE DELENS RAVIER, MARIE DELPLACE, VALENTINA STAELENS, CAROLINE VANDRESSE and MIEKE VERHEYDE = 39
1. Introduction = 39
2. The concept of participation = 39
3. How to put participation into practice = 42
3.1. External factor = 42
3.2. Child-related factors = 42
3.3. Adult-related factors = 45
3.4. Factors related to the adult-child relationship = 47
Concluding remarks = 48
PART II. PARTICIPATION IN DIFFERENT FIELDS = 51
CHAPTER 1. PARTICIPATION RIGHTS OF CHILDREN AND INTERNATIONAL CRIMINAL LAW TINY VANDEWIELE = 53
Introduction = 53
1. International criminal law and the childrens rights movement: general remarks = 54
2. Increased attention for the participation of children in international criminal proceedings = 55
2.1. Participation rights of children and international criminal law: general remarks = 56
2.2. Participation of children in international criminal proceedings = 58
2.2.1. ICTY and ICTR: participation of children in the proceedings not regulated = 58
2.2.2. ICC and SCSL: participation of children in the proceedings regulated = 58
3. Child offenders: no international criminal responsibility? = 60
3.1. Child soldiers, participation and international criminal law: general remarks = 61
3.2. International criminal responsibility of children? = 64
3.2.1. Unlimited jurisdiction of ICTY and ICTR = 64
3.2.2. The ICC has no jurisdiction over children = 65
3.2.3. Child Soldiers in Sierra Leone can be brought before the SCSL = 66
Conclusion = 68
CHAPTER 2. PARTICIPATION OF ASYLUM-SEEKING AND REFUGEE CHILDREN EVA BERGHMANS = 71 Introduction = 71
1. The Convention on the Rights of the Child = 73
2. The Committee on the Rights of the Child = 75
3. The United Nations High Commissioner for Refugees (UNHCR) = 78
4. The United Nations Childrens Fund (UNICEF) = 82
Conclusion = 85
CHAPTER 3. PARTICIPATION IN THE JUVENILE JUSTICE SYSTEM CAROLINE VANDRESSE = 87
Introduction = 87
1. The right to participation of juveniles within the context of extra judicial procedures = 88
1.1. Article 12 of the CRC = 89
1.1.1. Components and limits of Article 12 of the CRC = 89
1.1.2. The conditions for the application of Article 12 of the CRC: children capable of forming their own views = 89
1.2. Articles 37 and 40 of the CRC = 90
1.2.1. General points = 90
1.2.2. The consent of the juvenile within the context of the process of treating matters out of court = 91
2. Participation and consent within the context of juvenile justice = 92
2.1. Negotiated justice = 93
2.1.1. Notions = 93
a. Imposed justice = 93
b. Participative justice = 94
c. Consensual justice = 94
d. Negotiated justice = 94
2.1.2. Historical approach = 95
a. From negotiation to the criminal trial = 95
b. The law crisis = 96
c. The alternatives for a post-modern law = 97
2.2. Law on youth protection, development of participation of juveniles and respect for guarantees = 98
2.2.1. Process of treating matters out of court = 99
a. Abandonment of the right of access to a court: general remarks = 99
b. Conditions of abandonment = 101
c. A particular intervening party: the Public Prosecutor = 101
2.2.2. Negotiated and contractual justice = 104
Conclusion = 106
CHAPTER 4. PARTICIPATION AND PROTECTION OF CHILDREN AGAINST SUBSTANCE ABUSE AND TRAFFICKING AND PRODUCTION BY CHILDREN VALENTINA STAELENS = 109
Introduction = 109
1. Article 12 of the CRC and drug abuse by children = 110
2. Analysis of strategies of implementation of participatory rights in the light of drug abuse by children = 113
3. Analysis of some specific aspects of participation in the field of substance abuse = 116
3.1. Participation of children in the development, implementation and evaluation of national and international drug abuse prevention policies = 116
3.2. The use of peer-to-peer strategies for drug abuse prevention = 118
Conclusion = 121
CHAPTER 5. THE IMPLEMENTATION OF PARTICIPATION RIGHTS IN THE FIELD OF FLEMISH CHILD MENTAL HEALTH FIONA ANG = 123
Introduction = 123
1. Child mental health in Flanders, Belgium = 124
2. Belgian and Flemish implementation of participation rights in child mental health = 127
2.1. General observations: participation rights in Belgium = 127
2.2. Participation rights in Belgian and Flemish legislation relating to children with a psychiatric disability = 128
2.2.1. Medical treatment matters = 130
2.2.2. Assistance and voluntary commitment matters = 134
Extra-judicial way = 134
Judicial way = 135
2.2.3. Compulsory commitment matters = 136
3. Emancipatory character of participation rights for children with a psychiatric disability = 138
Conclusion = 140
CHAPTER 6. YOUTH PARTICIPATION, HELP AND PROTECTION DR. ISABELLE DELENS-RAVIER = 141
Introduction = 141
1. The concept of participation in the texts organising youth aid and the social reaction to juvenile delinquency in the French Community = 141
1.1. Youth aid = 142
1.2. Social reaction to juvenile delinquency = 143
1.3. The philosophy of the texts = 145
2. A specific research methodology = 147
2.1. Some historical elements = 148
2.2. The concept of collaborative research = 149
3. Contribution of research to the help and protection of youth = 151
3.1. Methodology = 152
3.2. The point of view of parents and families = 154
3.3. The point of view of the child = 157
4. Concluding remarks = 159
CHAPTER 7. PARTICIPATION IN ADOPTION MARIE DELPLACE = 163
Introduction = 163
1. Legal grounds for participation in adoption and corresponding State obligations in the CRC = 164
1.1. Article 21 of the CRC: the adoption article = 164
1.2. The CRCs cluster of participation rights = 165
1.2.1. Article 12 of the CRC = 165
1.2.2. Article 17 of the CRC = 167
1.2.3. Article 7 and 8 of the CRC = 167
1.3. State obligations concerning the right of the child to participate in adoption = 168
2. Implementation of legal provisions on participation of children in adoption = 169 2.1. Considering the opinion of the adoptee during the adoption process = 169 2.1.1. The right of the child to be informed prior to giving an opinion = 169 2.1.2. How to let the child participate during the adoption = 172 2.2. The right of the adopted child to information on his or her origins = 173 3. The emancipatory character of participation rights for the adoptee = 179 Conclusion = 179 CHAPTER 8. PARTICIPATION AT SCHOOL MIEKE VERHEYDE = 181 Introduction = 181 1. The importance of participation in education = 181 2. The international legal basis for participation in education = 184 2.1. The right to participate in education under the CRC = 184 2.2. Obligations regarding participation in education under the CRC = 190 3. Practical implementation of participation in education = 191 3.1. Mechanisms within the school context = 191 3.2. Mechanisms outside the school context = 194 4. Emancipatory nature of the CRCs provisions regarding participation in education = 195
Conclusion = 198
CHAPTER 9. PARTICIPATION AND HUMAN RIGHTS EDUCATION: A GORDIAN KNOT? LIEVE CATTRIJSSE = 199
Introduction = 199
1. What is human rights education? = 200
1.1. Human rights education: origin and evolutions in international law = 200
1.1.1. The first seeds = 201
1.1.2. The 1974 UNESCO Recommendation = 202
1.1.3. The nineties = 203
a. The Montreal Declaration = 204
b. The Vienna Declaration and Programme of Action = 205
1.1.4. The UN Decade for Human Rights Education = 206
1.1.5. To summarise = 208
1.2. Human rights education: conceptions of non-state actors = 208
1.2.1. Different actors, different angles = 209
1.2.2. Content and process of human rights educators = 210
1.2.3. The learning settings = 212
1.2.4. The target groups = 213
1.2.5. To summarise = 214
2. Human rights education: related concepts and their premises = 214
2.1. Participation as the cornerstone in human rights education = 215
2.1.1. Participation as the cornerstone in human rights education = 215
2.1.2. Participation in between autonomy and care = 216
2.1.3. Participation in between individual and collectivity = 218
2.2. Democracy and democratic citizenship as the final goals of human rights education = 221
2.2.1. Democracy: the end or endless? = 221
2.2.2. Citizenship: more than the entitlement of rights = 223
2.2.3. Democracy and universality: the letter or the spirit of law? = 223
2.3. Empowerment: fashion and rethoric? = 224
2.3.1. Empowerment education or human rights education? = 224
2.3.2. Empowerment is at the same time disempowerment = 226
3. Conclusions = 227
3.1. Human rights education as continuous dialogue = 227
3.2. Human rights as ethical frame of reference = 228
CONCLUSION = 231
1. What is participation? = 231
2. Why do we need participation? = 232
3. How can child participation be realised? = 234
4. Recommendations = 237
LITERATURE = 239
PART I. PARTICIPATION OF CHILDREN GENERAL OBSERVATIONS = 7
CHAPTER 1. PARTICIPATION RIGHTS IN THE UN CONVENTION ON THE RIGHTS OF THE CHILD FIONA ANG, EVA BERGHMANS, MARIE DELPLACE, VALENTINA STAELENS, CAROLINE VANDRESSE and MIEKE VERHEYDE = 9
1. Introduction = 9
2. Article 12 CRC = 11
2.1. Rights holder = 12
2.2. Object = 14
2.2.1. The right to express views freely in all matters affecting the child = 14
2.2.2. The right of the child to have his or her views being given due weight in accordance with his or her age and maturity = 18
2.2.3. The right to be heard in any judicial and administrative proceedings affecting the child, in a manner consistent with the procedural rules of national law = 19
2.3. State obligations = 20
Summarised = 25
CHAPTER 2. REFLECTIONS ON THE CONCEPT OF PARTICIPATION LIEVE CATTRIJSSE and DR. ISABELLE DELENS-RAVIER = 27
1. Introduction = 27
2. Another vision of children = 27
2.1. The pedagogy of Korczak: respect for children in education = 27
2.2. The pedagogy of Korczak and the CRC = 29
3. Interpretation of the concept = 31
4. Towards a culture of participation = 35
CHAPTER 3. TRANSCENDING DISCIPLINES: LEGAL PROFESSIONALS VIEWS ON PARTICIPATION FIONA ANG, EVA BERGHMANS, LIEVE CATTRIJSE, DR. ISABELLE DELENS RAVIER, MARIE DELPLACE, VALENTINA STAELENS, CAROLINE VANDRESSE and MIEKE VERHEYDE = 39
1. Introduction = 39
2. The concept of participation = 39
3. How to put participation into practice = 42
3.1. External factor = 42
3.2. Child-related factors = 42
3.3. Adult-related factors = 45
3.4. Factors related to the adult-child relationship = 47
Concluding remarks = 48
PART II. PARTICIPATION IN DIFFERENT FIELDS = 51
CHAPTER 1. PARTICIPATION RIGHTS OF CHILDREN AND INTERNATIONAL CRIMINAL LAW TINY VANDEWIELE = 53
Introduction = 53
1. International criminal law and the childrens rights movement: general remarks = 54
2. Increased attention for the participation of children in international criminal proceedings = 55
2.1. Participation rights of children and international criminal law: general remarks = 56
2.2. Participation of children in international criminal proceedings = 58
2.2.1. ICTY and ICTR: participation of children in the proceedings not regulated = 58
2.2.2. ICC and SCSL: participation of children in the proceedings regulated = 58
3. Child offenders: no international criminal responsibility? = 60
3.1. Child soldiers, participation and international criminal law: general remarks = 61
3.2. International criminal responsibility of children? = 64
3.2.1. Unlimited jurisdiction of ICTY and ICTR = 64
3.2.2. The ICC has no jurisdiction over children = 65
3.2.3. Child Soldiers in Sierra Leone can be brought before the SCSL = 66
Conclusion = 68
CHAPTER 2. PARTICIPATION OF ASYLUM-SEEKING AND REFUGEE CHILDREN EVA BERGHMANS = 71 Introduction = 71
1. The Convention on the Rights of the Child = 73
2. The Committee on the Rights of the Child = 75
3. The United Nations High Commissioner for Refugees (UNHCR) = 78
4. The United Nations Childrens Fund (UNICEF) = 82
Conclusion = 85
CHAPTER 3. PARTICIPATION IN THE JUVENILE JUSTICE SYSTEM CAROLINE VANDRESSE = 87
Introduction = 87
1. The right to participation of juveniles within the context of extra judicial procedures = 88
1.1. Article 12 of the CRC = 89
1.1.1. Components and limits of Article 12 of the CRC = 89
1.1.2. The conditions for the application of Article 12 of the CRC: children capable of forming their own views = 89
1.2. Articles 37 and 40 of the CRC = 90
1.2.1. General points = 90
1.2.2. The consent of the juvenile within the context of the process of treating matters out of court = 91
2. Participation and consent within the context of juvenile justice = 92
2.1. Negotiated justice = 93
2.1.1. Notions = 93
a. Imposed justice = 93
b. Participative justice = 94
c. Consensual justice = 94
d. Negotiated justice = 94
2.1.2. Historical approach = 95
a. From negotiation to the criminal trial = 95
b. The law crisis = 96
c. The alternatives for a post-modern law = 97
2.2. Law on youth protection, development of participation of juveniles and respect for guarantees = 98
2.2.1. Process of treating matters out of court = 99
a. Abandonment of the right of access to a court: general remarks = 99
b. Conditions of abandonment = 101
c. A particular intervening party: the Public Prosecutor = 101
2.2.2. Negotiated and contractual justice = 104
Conclusion = 106
CHAPTER 4. PARTICIPATION AND PROTECTION OF CHILDREN AGAINST SUBSTANCE ABUSE AND TRAFFICKING AND PRODUCTION BY CHILDREN VALENTINA STAELENS = 109
Introduction = 109
1. Article 12 of the CRC and drug abuse by children = 110
2. Analysis of strategies of implementation of participatory rights in the light of drug abuse by children = 113
3. Analysis of some specific aspects of participation in the field of substance abuse = 116
3.1. Participation of children in the development, implementation and evaluation of national and international drug abuse prevention policies = 116
3.2. The use of peer-to-peer strategies for drug abuse prevention = 118
Conclusion = 121
CHAPTER 5. THE IMPLEMENTATION OF PARTICIPATION RIGHTS IN THE FIELD OF FLEMISH CHILD MENTAL HEALTH FIONA ANG = 123
Introduction = 123
1. Child mental health in Flanders, Belgium = 124
2. Belgian and Flemish implementation of participation rights in child mental health = 127
2.1. General observations: participation rights in Belgium = 127
2.2. Participation rights in Belgian and Flemish legislation relating to children with a psychiatric disability = 128
2.2.1. Medical treatment matters = 130
2.2.2. Assistance and voluntary commitment matters = 134
Extra-judicial way = 134
Judicial way = 135
2.2.3. Compulsory commitment matters = 136
3. Emancipatory character of participation rights for children with a psychiatric disability = 138
Conclusion = 140
CHAPTER 6. YOUTH PARTICIPATION, HELP AND PROTECTION DR. ISABELLE DELENS-RAVIER = 141
Introduction = 141
1. The concept of participation in the texts organising youth aid and the social reaction to juvenile delinquency in the French Community = 141
1.1. Youth aid = 142
1.2. Social reaction to juvenile delinquency = 143
1.3. The philosophy of the texts = 145
2. A specific research methodology = 147
2.1. Some historical elements = 148
2.2. The concept of collaborative research = 149
3. Contribution of research to the help and protection of youth = 151
3.1. Methodology = 152
3.2. The point of view of parents and families = 154
3.3. The point of view of the child = 157
4. Concluding remarks = 159
CHAPTER 7. PARTICIPATION IN ADOPTION MARIE DELPLACE = 163
Introduction = 163
1. Legal grounds for participation in adoption and corresponding State obligations in the CRC = 164
1.1. Article 21 of the CRC: the adoption article = 164
1.2. The CRCs cluster of participation rights = 165
1.2.1. Article 12 of the CRC = 165
1.2.2. Article 17 of the CRC = 167
1.2.3. Article 7 and 8 of the CRC = 167
1.3. State obligations concerning the right of the child to participate in adoption = 168
2. Implementation of legal provisions on participation of children in adoption = 169 2.1. Considering the opinion of the adoptee during the adoption process = 169 2.1.1. The right of the child to be informed prior to giving an opinion = 169 2.1.2. How to let the child participate during the adoption = 172 2.2. The right of the adopted child to information on his or her origins = 173 3. The emancipatory character of participation rights for the adoptee = 179 Conclusion = 179 CHAPTER 8. PARTICIPATION AT SCHOOL MIEKE VERHEYDE = 181 Introduction = 181 1. The importance of participation in education = 181 2. The international legal basis for participation in education = 184 2.1. The right to participate in education under the CRC = 184 2.2. Obligations regarding participation in education under the CRC = 190 3. Practical implementation of participation in education = 191 3.1. Mechanisms within the school context = 191 3.2. Mechanisms outside the school context = 194 4. Emancipatory nature of the CRCs provisions regarding participation in education = 195
Conclusion = 198
CHAPTER 9. PARTICIPATION AND HUMAN RIGHTS EDUCATION: A GORDIAN KNOT? LIEVE CATTRIJSSE = 199
Introduction = 199
1. What is human rights education? = 200
1.1. Human rights education: origin and evolutions in international law = 200
1.1.1. The first seeds = 201
1.1.2. The 1974 UNESCO Recommendation = 202
1.1.3. The nineties = 203
a. The Montreal Declaration = 204
b. The Vienna Declaration and Programme of Action = 205
1.1.4. The UN Decade for Human Rights Education = 206
1.1.5. To summarise = 208
1.2. Human rights education: conceptions of non-state actors = 208
1.2.1. Different actors, different angles = 209
1.2.2. Content and process of human rights educators = 210
1.2.3. The learning settings = 212
1.2.4. The target groups = 213
1.2.5. To summarise = 214
2. Human rights education: related concepts and their premises = 214
2.1. Participation as the cornerstone in human rights education = 215
2.1.1. Participation as the cornerstone in human rights education = 215
2.1.2. Participation in between autonomy and care = 216
2.1.3. Participation in between individual and collectivity = 218
2.2. Democracy and democratic citizenship as the final goals of human rights education = 221
2.2.1. Democracy: the end or endless? = 221
2.2.2. Citizenship: more than the entitlement of rights = 223
2.2.3. Democracy and universality: the letter or the spirit of law? = 223
2.3. Empowerment: fashion and rethoric? = 224
2.3.1. Empowerment education or human rights education? = 224
2.3.2. Empowerment is at the same time disempowerment = 226
3. Conclusions = 227
3.1. Human rights education as continuous dialogue = 227
3.2. Human rights as ethical frame of reference = 228
CONCLUSION = 231
1. What is participation? = 231
2. Why do we need participation? = 232
3. How can child participation be realised? = 234
4. Recommendations = 237
LITERATURE = 239