Putting children’s rights at the heart of strategic litigation practice

Recent years have seen a huge increase in child rights strategic litigation (CRSL) – that is, litigation that that seeks to bring about positive legal and/or social change in terms of children’s enjoyment of their rights. Both in the UK and internationally, cases asserting children’s rights are being taken by an ever-more diverse range of actors, ranging from solicitors and other legal practitioners, to children’s rights organisations, to national human rights institutions to law clinics to lawyers associations, to children themselves. Some of those bringing cases have long-standing experience in working on children’s rights in relation to issues like child justice and child protection, while other litigators are new to the area of child rights but seek to bring those standards to bear in important new contexts, such as climate justice and artificial intelligence.

The ACriSL project

This increasing body of litigation has thus far received relatively little analysis, a state of affairs that has led to the development of the Advancing Child Rights Strategic Litigation (ACriSL) project. This project, a three-year research collaboration involving eight partners drawn from academic and advocacy in Africa, Europe and Asia, led by the University of Nottingham Human Rights Law Centre, has carried out extensive research on the theory and practice of child rights strategic litigation globally.

Children’s rights have played an important ‘outward-facing’ role in this context: those standards have been treated by practitioners and others involved in planning and implementing child rights strategic litigation as a schema that should constrain or mandate the actions of external decisionmakers that are the direct or indirect targets of the strategic litigation (e.g., government ministers, officials and other actors).

However, a key finding of ACRiSL’s work is that notwithstanding children’s rights centrality to CRSL, those standards have not been used as a framework by which to assess, and as necessary, critique the practice of CRSL – i.e., as a lens to be turned inwards by those carrying out such litigation to consider the extent to which their practice (rather than simply the aims or impact of such) are consistent with child rights standards. This is despite the fact that the way in which such litigation is carried out raises a host of potential issues with regard to ensuring children’s enjoyment of their rights, including those related to protection, participation, privacy, freedom of expression, information, freedom from exploitation and their best interests.

Responding to this ‘child rights gap’ in CRSL, the ACRiSL project approached child rights under the UN Convention on the Rights of the Child (UNCRC) as a framework to inform and assess the inputs, outputs, processes and outcomes of child rights strategic litigation, in line with the view that children’s rights set out in the UNCRC can and should play a role with regard to shaping and informing litigation practice. It did so on the basis that, where CRSL efforts aim to advance children’s rights through legal and/or social change but are inconsistent with children’s rights in terms of how they are operationalised, their legitimacy is weakened, as well as their internal coherence and capacity to contribute to children’s rights achievement in practice.

The project produced guidance for lawyers and others interested in CRSL about how to integrate children’s rights into their efforts, focusing on four key stages of the litigation process: (1) the scoping planning and design of CRSL; (2) the operationalisation of CRSL; (3) the follow-up to CRSL (including implementation); and (4) extra legal advocacy (political campaigning, media and communications). It also developed a series of toolkits and video explainers for children and those collaborating with them on CRSL. Reflecting the very significant amount of CRSL currently being brought in relation to environmental protection, ACRiSL has also developed specific guidance on how child rights are being, and can be, integrated into climate justice strategic litigation practice. It has also established a very active network of academics, legal professionals, NGOs, IGOs, NHRIs and others interested in CRSL from a wide range of perspectives, and organised a large number of events focused on different aspects of litigation practice.

Reflecting growing interest in strategic litigation on the part of national human rights institutions (particularly among children’s commissioners/ombudspersons), project members have collaborated with the Children and Young People’s Commissioner Scotland to produce a Children’s Rights Strategic Litigation Toolkit to ensure that the body’s work is consistent with the Commissioner’s role to promote and safeguard children’s rights, and is in compliance with the UNCRC. A Jersey-specific version is currently being developed with the Office of the Children and Young People’s Commissioner Jersey.

Conclusion

ACRiSL’s work has been widely welcomed by litigators and others working on children’s rights and has led to growing recognition that child rights could and should have a role in shaping CRSL. Much remains to be done, however. Ultimately, if litigators are serious about giving effect to children’s rights in all contexts, this must include their own work as well.

To join the ACRiSL network for litigators, advocates, academics, policymakers and others, please do so here. The ACRiSL partners: the Centre for Child Law at the University of Pretoria, Child Rights International Network, the European Center for Constitutional and Human Rights, the Human Rights Rights Law Centre at the University of Nottingham, the Global Campus of Human Rights, the Pedro Arrupe Institute of Human Rights, the University of Deusto, HRLN, and Impact – Law for Social Justice. The project formed part of the Global Campus and Right Livelihood Cooperation.