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.