Toolkit on Diversion and Alternatives to Detention

Main principles

 
 

Child Rights Approach

• Introduction
• 1. What is a child rights-based approach?
• 2. How can this be applied to diversion and alternatives?
• Summary
 
Introduction
This toolkit adopts a perspective firmly grounded in child rights and child protection. However, this perspective is compatible with the main objectives of the criminal justice system overall (to prevent crime and to create a peaceful, law-abiding society) and complementary to crime prevention principles: the creation of safer societies contributes to the realisation of children's rights and the realisation of children's rights contributes to safer societies.

As shown in the 'useful diagram', UNICEF is advocating a child rights-based approach to diversion and alternatives. This section explains what is meant by a child rights-based approach and provides guidance on how this can be applied to diversion and alternatives. 
 
1. What is a 'child rights-based approach'?
UNICEF does not have a specific definition of a 'child rights-based approach.' It refers instead to the 'human rights-based approach to programming':
"In keeping with the outcome document of the UN consultation at Stamford (the UN Common Understanding), a human rights based approach to programming means for UNICEF that:
      The aim of all Country Programmes of Cooperation, including in humanitarian situations, is to further the realisation of the rights of all children and women;
      Human rights and child rights principles guide programming in all sectors at all phases of the programme process; and
      Programmes of Cooperation focus on developing the capacities of duty-bearers, at all levels, to meet their obligations to respect, protect and fulfil rights; as well as on developing the capacities of rights-holders to claim their rights.”[1]

Download further information on UNICEF's and the UN Office of the High Commissioner on Human Rights' understanding of the human rights-based approach
 
2. How can this be applied to diversion and alternatives?
In practice, this means that:
     • Diversion and alternatives should comply with the rights set out in the CRC and other human rights instruments (not just CRC Articles 37(b) and 40, but all articles (including, e.g. privacy): the child must be seen as a complete human being, not just in terms of the 'juvenile justice' label);
     • In addition to specific CRC articles, diversion and alternatives must also consider the overall principles of the CRC at all times (Art. 2 - non-discrimination, Art. 3 - best interests, Art. 6 - life, survival and development, and Art 12 - right to be heard);
     • The process of achieving children's rights (through the strengthening of both duty-bearers and claims-holders) is just as important as the end results of achieving child rights in relation to diversion and alternatives.

The main objectives of the criminal justice system overall (to prevent crime and to create a peaceful, law-abiding society) require that in case by case situations relating to diversion and alternatives, the best interests of the child need to be balanced against the interests of victims/suvivors and society in general. However, even in such cases "such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration.”[2] This partiality towards children is based not only on respect for individual children's rights, but on the assumption that investing in children's rights is an effective way to prevent recidivism and contribute positively to the objectives of the criminal justice system as a whole.

According to the diagram included in the UNICEF materials on a human rights-based approach to programming (available to download above), UNICEF, with wider UN cooperation, should build up global knowledge, consensus and evidence from evaluation and:
     • Identify unfulfilled children's rights (through situation analysis and monitoring) [see toolkit section on data management, monitoring and evaluation]
     • Articulate claims (through advocacy and social mobilisation) [see toolkit sections on children's life skills, knowledge and participation]
     • Support actors who may lack capacity (through technical, material, financial and informational assistance) [see toolkit sections on government commitment (pdf), capacity of those in contact with children (pdf) & technical support]
     • Plan for the implementation of duties (through establishing accountabilities and supporting national planning) [see toolkit section on planning and implementation]

Although not an official UNICEF or UN interpretation, some people may find it useful to also refer to the visual aids set out in the document below ('learn more about a child rights-based approach'). For example, the image of the 'arch of human rights' can help as a reminder to support both sides of the 'arch' in diversion and alternatives programmes (claims-holders and duty-bearers); and the 'table leg test' image can help as a reminder to consider the principles of the CRC at all times. This document also includes a series of simple training exercises to explain a child rights-based approach to audiences who are less familiar with the concept.

Learn more about a child rights-based approach [Word 434kb]

Download a presentation from UNICEF Papua New Guinea demonstrating how the system for children in conflict with the law is being transformed into a rights-based system [Powerpoint 247kb] 
 
Summary
A child rights-based approach to diversion and alternatives is one which sets out to further the realisation of all children's rights relevant to diversion and alternatives (as set out in the CRC and other instruments), through a process of supporting duty-bearers to fulfill these rights and claims-holders to claim them, whilst taking into account the CRC principles at all times (non-discrimination, best interests, life, survival and development, and the right to be heard). The process is just as important as the end result. The best interests of the child need to be balanced, on a case by case basis, against the interests of victims/suvivors and society in general, but investment in child rights contributes to increased reintegration and reduced recidivism and therefore to the objectives of the criminal justice system and crime prevention as a whole. 
 
Footnotes:
1. UNICEF’s ‘Programme Policy and Procedure Manual - Programme Operations, Revised February 2007’, pp.5-6.
2. Committee on the Rights of the Child, General Comment 10, paragraph 71.


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