“Children’s rights” and “the best interests of the child” are constantly invoked in Australian debates about medical treatment of minors, parental authority, identity, adoption and surrogacy. They are less often read.
The Convention on the Rights of the Child does not supply simple answers to these questions. It supplies a framework that has to be applied as a whole.
The United Nations Convention on the Rights of the Child (CRC) is the principal international human rights treaty dealing specifically with children. It was adopted on 20 November 1989 and entered into force on 2 September 1990. It has 196 States Parties. Australia signed the Convention on 22 August 1990 and ratified it on 17 December 1990; it entered into force for Australia on 16 January 1991.
The Convention recognises children as individual rights-holders. But children are not miniature adults. The CRC also recognises their developing capacities, dependence on adults, family relationships, parental responsibilities and the State’s responsibility to protect them from harm.
“Children’s rights” and “best interests” therefore cannot be used as slogans that automatically resolve difficult questions.
A child’s views matter, but do not automatically determine the outcome. The child’s best interests are a primary consideration, but the Convention does not say that every expressed preference is decisive. Parents retain responsibilities, while the State has duties to protect children where necessary.
These principles are particularly important when the CRC is invoked in debates about medical treatment, bodily integrity, girls’ sex-based protections, breastfeeding, adoption, surrogacy and parental authority.
The four general principles
Four provisions are widely treated as the Convention’s general principles: Articles 2, 3, 6 and 12.
Article 2 — Non-discrimination
Article 2 requires States Parties to respect and ensure the rights in the Convention without discrimination, expressly including sex.
Non-discrimination does not necessarily mean identical treatment. Children may have different needs and require different protections to achieve substantive equality.
This is particularly relevant to girls, who can face sex-specific violence, exploitation, reproductive harm and discrimination. Recognising those risks is not inconsistent with equality.
The question is not simply whether everyone is treated identically, but whether distinctions are justified by the rights and interests of children and legitimate protection against harm.
Article 3 — Best interests of the child
Article 3 provides that the best interests of the child shall be a primary consideration in actions concerning children.
The Committee on the Rights of the Child has explained in General Comment No. 14 that best interests operate as a substantive right, an interpretive principle and a procedural rule.
The phrase “best interests” does not itself answer what is best. An assessment must consider the individual child and circumstances, including physical and psychological development, health, family relationships, vulnerability, future autonomy and short- and long-term consequences.
Best interests therefore require reasoning and evidence. They cannot simply be declared by an institution, parent, professional or government body.
Article 6 — Life, survival and development
Article 6 recognises every child’s inherent right to life and requires States Parties to ensure, to the maximum extent possible, the survival and development of the child.
Development extends beyond physical survival to physical, psychological, social and other development.
This makes long-term consequences relevant to decisions concerning children. Depending on the circumstances, these may include effects on physical or psychological development, fertility, sexual function, family relationships and future autonomy.
Article 6 does not determine any particular medical or social policy question. It requires children’s development to be taken seriously when decisions affecting them are made.
Article 12 — The child’s right to be heard
Article 12 requires that children capable of forming their own views be given the opportunity to express them freely, with those views given due weight according to age and maturity.
The right to be heard is important, but is not the same as an unlimited right of self-determination.
A child’s views must be considered alongside the Convention’s other provisions, including best interests, development, protection from harm, parental responsibilities and the right to health.
The CRC therefore requires children to be heard without making every expressed preference automatically decisive.
Children, parents and family responsibility
The CRC does not replace parental responsibility with unrestricted child autonomy.
Article 5 recognises the rights and duties of parents and others legally responsible for a child to provide appropriate direction and guidance in the exercise of the child’s rights, consistent with evolving capacities.
Article 18 recognises the common responsibilities of parents for the upbringing and development of the child, with the child’s best interests as their basic concern.
The Convention therefore establishes a relationship between child, parent and State.
As children mature, their capacity to participate in decisions generally increases. But the relevant question is not simply whether a child has expressed a preference. Depending on the decision, relevant considerations may include age, maturity, understanding of the consequences, seriousness of the decision, parental role and best interests.
Parental responsibility is not absolute. The State must protect children where there is abuse, neglect, exploitation or serious risk of harm.
But children’s rights do not make parents unnecessary, nor give the State unrestricted authority to displace them whenever a child expresses a preference.
Family relationships, identity and origins
The CRC gives significant protection to family relationships and identity.
Article 7 recognises the child’s right, as far as possible, to know and be cared for by his or her parents.
Article 8 requires States to respect the child’s right to preserve identity, including nationality, name and family relations.
Article 9 establishes protections concerning separation from parents and requires safeguards where separation is necessary in the child’s best interests.
These provisions do not prescribe one family model. They do establish that family relationships and identity are matters of importance to the child and should not simply be reduced to adult preference.
This is relevant to adoption, assisted reproduction and other arrangements in which biological, gestational and social parenthood may not coincide.
Health, bodily integrity and medical decisions
Article 24 recognises the child’s right to the highest attainable standard of health.
Article 19 requires protection from physical or mental violence, injury, abuse, neglect, maltreatment and exploitation while in the care of parents, guardians or others responsible for the child.
The CRC does not establish either an absolute right to consent to every medical intervention or an automatic prohibition of particular treatments.
Medical decisions must instead be considered through the Convention as a whole, including Articles 3, 5, 6, 12, 19 and 24.
General Comment No. 15 links children’s health rights with these wider principles. Decisions should take account of best interests, evolving capacities and the child’s views, together with protection and development.
Relevant questions may include:
- Is the intervention medically necessary?
- What is the quality and certainty of the evidence?
- What risks and uncertainties exist?
- Are there less invasive alternatives?
- Is the intervention reversible or permanent?
- What are the potential effects on physical, psychological, sexual or reproductive development?
- Does the child understand the nature and consequences of the decision?
- What are the child’s age and maturity?
- What role should parents play?
- What are the foreseeable short- and long-term consequences?
This is not a formula for or against any particular treatment. It is a framework for asking whether the rights and interests of the individual child have genuinely been considered.
Where evidence is uncertain and consequences may be significant or irreversible, questions of development, health, protection from harm and best interests become particularly important.
Girls, sex and non-discrimination
The CRC is not a sex-blind instrument.
Article 2 expressly identifies sex as a prohibited ground of discrimination. The Convention also recognises that children may require protection from particular forms of harm and exploitation.
For girls, some risks arise specifically because they are female. Sex-specific health needs, reproductive vulnerability, sexual exploitation and forms of violence disproportionately affecting girls can require policies and protections that recognise sex.
The same principle can apply to practical arrangements such as single-sex facilities where privacy, dignity or safety are relevant considerations.
The existence of a sex-based distinction does not, by itself, establish discrimination. The relevant question is whether the distinction is justified in the circumstances and consistent with the rights and interests of the child.
Equality does not require the erasure of sex, and non-discrimination does not mean that sex-specific protections are inherently discriminatory.
Breastfeeding and the rights of mothers and children
Breastfeeding illustrates why children’s rights must be considered alongside other rights and responsibilities.
Article 24(2)(e) requires States Parties to ensure that parents and children are informed about, have access to education concerning, and are supported in the use of basic knowledge of child health and nutrition, including the advantages of breastfeeding.
This creates a responsibility for governments to inform and support families.
It does not, however, create an unlimited legal entitlement of one person to another person’s body.
A child’s health interests and a mother’s bodily autonomy and dignity must be considered together. Governments can promote breastfeeding and remove barriers to it without treating a woman’s body as an instrument to which the State, an institution or another individual is automatically entitled.
The example illustrates a wider point: recognising a child’s rights does not automatically extinguish the rights, dignity or responsibilities of others.
Protection from harmful practices
Article 24(3) requires States Parties to take effective and appropriate measures to abolish traditional practices prejudicial to children’s health.
The Committee has addressed practices including female genital mutilation and unnecessary or non-consensual medical interventions on intersex children in its interpretation of the Convention.
These practices are not interchangeable. They raise different questions concerning medical necessity, health, culture, consent, bodily integrity and parental responsibility.
The broader principle is that where a practice affecting a child’s body may cause significant harm, the Convention requires serious consideration of the child’s health, development, protection and best interests.
That framework is also relevant to contested medical interventions involving adolescents, where evidence, necessity, risks, alternatives, development, capacity, parental responsibility and long-term consequences should not be assumed away.
Adoption
Adoption provides an important contrast because the CRC contains a specific provision dealing with it.
Article 21 requires that, in systems of adoption, the best interests of the child shall be the paramount consideration.
This is stronger than the general formulation in Article 3, which describes the child’s best interests as a primary consideration.
Adoption is therefore not framed as an adult entitlement to form a family. The focus is the child.
Articles 7, 8 and 9 remain relevant because adoption can affect family relationships, identity and knowledge of origins.
This does not mean that a child has an absolute right to remain with biological parents where that would be unsafe. The Convention recognises the need for alternative care where appropriate.
It does mean that adoption policy should be assessed from the perspective of the child’s rights and welfare rather than solely through the interests of adults seeking to adopt.
Surrogacy
The CRC does not establish an adult right to have a child.
Its rights belong to the child who exists, and the child’s interests cannot simply be assumed to be identical to the reproductive interests of adults involved in creating or commissioning that child.
Articles 3, 7, 8 and 9 are relevant to parentage, identity, family relationships and the child’s ability, as far as possible, to know and be cared for by parents.
Surrogacy can involve arrangements in which genetic, gestational and social parenthood are divided between different adults. International arrangements can raise additional questions concerning legal parentage, nationality and access to information about biological origins.
Articles 35 and 36 add another dimension. Article 35 requires States to take appropriate measures to prevent the abduction, sale or trafficking of children, while Article 36 requires protection against other forms of exploitation prejudicial to a child’s welfare.
This does not mean every surrogacy arrangement is automatically a sale, trafficking or exploitation of a child. It does mean that systems involving contracts, payments, intermediaries or cross-border transfer must be examined carefully so that the child is not reduced to an object of an adult transaction or placed at risk of exploitation.
The CRC therefore does not provide a complete legal code on surrogacy or establish a treaty prohibition. It does require governments and institutions to consider the child independently of adults’ reproductive wishes.
What the CRC does — and does not — require
The Convention does not say that:
- children have unrestricted autonomy in every decision;
- every expressed preference of a child must determine the outcome;
- parental responsibility disappears as children mature;
- “best interests” simply means whatever an institution or adult declares to be best;
- every requested medical intervention is itself a right to health;
- sex-based distinctions are automatically discrimination;
- General Comments or Concluding Observations are Australian legislation;
- adults have a human right under the CRC to have a child;
- adoption should primarily be assessed according to the wishes of adults seeking a child;
- surrogacy arrangements can be assessed without considering the independent rights and interests of the child.
What the Convention does require is that children’s rights be taken seriously.
Children have rights. Their views must be heard and given appropriate weight. Their development and health matter. They must be protected from violence, abuse, exploitation and harmful practices. Their identity and family relationships matter. Their best interests must be a primary consideration in decisions concerning them.
These principles have to be held together.
A child’s right to be heard does not automatically erase parental responsibility. A child’s right to health does not automatically answer every question about medical intervention. Equality does not require sex to become invisible. The best-interests principle requires a reasoned assessment rather than a predetermined conclusion.
And the CRC does not turn adult interests into child rights simply by describing those interests in the language of children’s rights.
The CRC in Australian law
Australia is internationally bound by the Convention and participates in the United Nations reporting and review process concerning its implementation. Australia has also ratified the Optional Protocols concerning children in armed conflict and the sale of children, child prostitution and child pornography.
The CRC is an international treaty. Ratification creates international obligations for Australia, but does not mean every provision automatically operates in Australian domestic law as a directly enforceable statutory right.
General Comments issued by the Committee on the Rights of the Child are important interpretive and guidance materials. They are not Australian legislation and do not amend Australian statutes.
Similarly, the Committee’s Concluding Observations are recommendations and findings within the international monitoring system. They are relevant to understanding the Committee’s interpretation of the Convention, but do not themselves change Australian law.
Australian law may also use terminology that differs from the CRC. For example, Australian family law can give the best interests of the child a particular domestic legal status in specific contexts, while the CRC provides that best interests shall be a primary consideration. These formulations should not simply be treated as interchangeable.
Australia also ratified the CRC subject to a reservation concerning Article 37(c), relating to the separation of children from adults in detention. The reservation qualifies the application of that separation obligation in light of feasibility, geography, demography and maintaining family contact.
That reservation is specific to Article 37(c). It does not qualify the Convention’s broader principles concerning children’s health, development, family relationships, identity, protection or best interests.
The CRC therefore has to be understood both as an international treaty obligation and within the constitutional and legislative framework through which international obligations operate in Australia.
Conclusion
The Convention on the Rights of the Child is neither a charter of unrestricted child autonomy nor a licence for unlimited parental or State authority.
It recognises children as rights-holders while also recognising that children develop, depend on adults and exist within families and communities.
The Convention requires children to be heard. It requires their development and health to be taken seriously. It requires protection from harm and exploitation. It protects identity and family relationships. It makes the child’s best interests a primary consideration.
At the same time, it recognises parental responsibilities and does not establish an automatic right for the State to displace parents or for adults to convert their own interests into children’s rights.
The most important question is therefore not whether the language of “children’s rights” or “best interests” has been invoked.
It is whether the Convention has actually been applied.
Best interests require a reasoned assessment.
A child’s voice should be heard without erasing adult responsibilities.
Equality does not require sex to be erased.
A right to health does not automatically make every intervention a right.
And an adult desire to have a child is not, by itself, a right belonging to the child.
Children’s rights must be taken seriously — but they must also be understood as part of a whole.
Reference:
United Nations. Convention on the Rights of the Child https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child
UN Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), CRC/C/GC/14. https://digitallibrary.un.org/record/778523?ln=en&v=pdf
UN Committee on the Rights of the Child, General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), CRC/C/GC/15. https://digitallibrary.un.org/record/778524?v=pdf