1. Introduction
Tragically, the abuse of children within organizational contexts continues to persist across time and geographies. Various institutions established for children’s care and protection, such as orphanages, foster care systems, and reformatory schools, have repeatedly been exposed as epicentres of abuse.Footnote 1 Recent public inquiries in high-income countries like New Zealand,Footnote 2 Australia,Footnote 3 England and Wales,Footnote 4 and the Netherlands,Footnote 5 alongside high-profile public scandals involving organizations like USA GymnasticsFootnote 6 and Boy Scouts of America,Footnote 7 highlight the pervasive nature of child abuse in different organizational settings. Child abuse within the Catholic Church across many countries,Footnote 8 as well as abuse and exploitation in humanitarian settings,Footnote 9 reveal the global challenge of protecting children from violence within environments intended to provide care.
Across the spectrum of cases, despite their unique contexts and circumstances, a pattern of systemic failures becomes apparent. Rather than being a case of a ‘few bad apples’, it is increasingly understood that individual behaviours emerge from a ‘bad barrel’ of organizational cultures and structures that enable – or at least, do not take steps to prevent – child abuse.Footnote 10 Frequently, organizations fail to establish or adhere to essential policies and procedures outlining their commitment to child safety, how they will create safe environments, and how they will address safety concerns, including reporting suspected abuse.Footnote 11 The prevailing culture and environment of organizations, including strong hierarchical power structures linked with the status of children in their care and also among personnel, can inadvertently enable child abuse.Footnote 12 Safe avenues for children to report abuse are often non-existent or children are not aware of them.Footnote 13 Too often, when cases of abuse come to light, organizational responses are inadequate: ranging from disbelief and victim-blaming to prioritizing the reputation of the organization or individuals above children’s best interests.Footnote 14 In this landscape, the concept and practice of ‘child safeguarding’ has emerged as an approach to address these systemic failures.
Child safeguarding focuses on the responsibilities of organizations to proactively identify and mitigate risks to children stemming from their operations, programmes, and personnel, to respond appropriately to concerns, and to report suspected abuse to relevant authorities. The term ‘child safeguarding’ originates from the UKFootnote 15 and appears to have entered international discourse after the 2002 ‘sex-for-food’ scandal in West Africa, when a report from the UN High Commissioner for Refugees and Save the Children implicated humanitarian workers in the sexual exploitation of refugee children.Footnote 16 The 2002 scandal led several UK-based non-governmental organizations (NGOs) to form the ‘Keeping Children Safe’ coalition and establish ‘Child Safeguarding Standards’.Footnote 17 The coalition used the term ‘child safeguarding’ to describe an organization’s duty to ensure that its staff, operations, and programmes ‘do no harm’ to children. Since then, there have been various efforts within the humanitarian community to protect children from harm linked with humanitarian programmes and personnel. For instance, the humanitarian sector has included responsibilities to safeguard children in its self-regulatory standards in line with the humanitarian imperative to ‘do no harm’.Footnote 18 Some bilateral donors have introduced child safeguarding requirements for their grantees in the context of international development assistance.Footnote 19
The term ‘child safeguarding’ has also gained prominence in other sectors. For example, in sports, high-profile cases of child sexual abuse in the 1990s prompted organizations, initially in the UK, Canada, and Australia, to develop child safeguarding measures.Footnote 20 In the United States, while the term is less common, efforts to prevent child abuse within ‘youth-serving organisations’ are well-established.Footnote 21 Australia has adopted the concept of ‘child safe organisations’, propelled by a growing public consciousness about the risks to children in institutional care.Footnote 22 Internationally, the Pontifical Commission for the Protection of Minors, established in 2013 as an advisory body to the Pope, is developing universal child safeguarding guidelines for the Church.Footnote 23 The African Committee of Experts on the Rights and Welfare of the Child has expressly advised state parties to ensure that organizations working with children adopt ‘child safeguarding’ policies.Footnote 24 The UN Committee on the Rights of the Child (CRC Committee) has started referencing the term ‘safeguarding’ in the context of preventing violence against children in organizational settings in its recommendations since 2021.Footnote 25
Although ‘child safeguarding’ and ‘child protection’ are sometimes used interchangeably, this article conceptualizes ‘child safeguarding’ as a distinct subset within ‘child protection’. The term ‘child protection’ has become very broad in international discourse, encompassing a wide range of activities aimed at preventing and responding to violence, exploitation, abuse, and neglect. This broad usage has been influenced by Article 19 of the UN Convention on the Rights of the ChildFootnote 26 (CRC) and the CRC Committee’s interpretative guidance that a ‘holistic child protection system’ integrates a spectrum of integrated measures that span prevention, identification, reporting, referral, investigation, treatment, and follow-up of instances of child maltreatment.Footnote 27 Operationalizing such a system requires enhancing laws, policies, and systems that address risks to children in all settings, as well as paying attention to family and community dynamics that impact individual children.Footnote 28 Thus, the term ‘child protection’ has come to include the broad scope of actions to improve laws, policies, and mechanisms in support of a ‘holistic child protection system’.Footnote 29
This article suggests ‘child safeguarding’ can be distinguished from ‘child protection’ in three main ways. First, it focuses on organizational settings, including state and non-state entities working with children. Second, child safeguarding takes a proactive, preventative approach, in contrast to the traditionally reactive nature of child protection. This approach calls for organizations to anticipate potential risks to children and to implement measures to mitigate these risks before harm occurs. Third, child safeguarding emphasizes a clear accountability framework. Organizations must establish clear reporting channels and procedures for handling concerns about a child’s safety. The semantic distinction between ‘child safeguarding’ and ‘child protection’ may seem minor in some contexts, but it is crucial for clarifying the specific responsibilities to protect children from harm in organizational settings, as distinct from the broader child protection systems that states are obligated to establish.
Child safeguarding is relevant to both state and non-state entities. However, the article largely focuses on non-state entities and specifically NGOs given the plethora of NGOs providing services for children and their ‘underregulated’ status in international human rights law.Footnote 30 The article seeks to fill a gap in the literature and to provide a unique analysis aimed at promoting an approach to child safeguarding grounded in international children’s rights law. While the abuse of children in organizational settings has been extensively studied across various disciplines including history, sociology, social work, criminology, and public health,Footnote 31 the concept and practice of ‘child safeguarding’ have received comparatively minimal academic attention, especially from an international human rights law perspective. Accordingly, the aim of this article is two-fold: first, to introduce the practice of child safeguarding into the domain of international legal scholarship; and second, to examine if and how international children’s rights law can clarify the respective child safeguarding responsibilities of states vis-à-vis NGOs. This prompts the question of how international human rights law applies to non-state actors like NGOs – a subject that has seen extensive discussion and varying viewpoints among legal scholars.Footnote 32 This article does not attempt to recapitulate this expansive literature but rather to offer a new perspective by focusing on the CRC and the work of its treaty body, the CRC Committee. Reference is also made to the African Charter on the Rights and Welfare of the ChildFootnote 33 (ACRWC) as the only other comprehensive instrument dedicated to children’s rightsFootnote 34 and the work of its treaty body, the African Committee of Experts on the Rights and Welfare of the Child (ACRWC Committee).
This article comprises four main sections. Following this introduction, Section 2 presents a normative foundation for child safeguarding based on international children’s rights law. Section 3 analyses the state’s responsibility vis-à-vis non-state actors in international human rights law, discussing whether the state can be held accountable for violations by non-state entities. It also examines the content and scope of state obligations to protect children in organizational settings, drawing on guidance from the CRC Committee, other treaty bodies, as well as illustrative cases from other legal systems to start to build a common set of minimum standards across all organisational settings. Section 4 analyses the CRC Committee’s guidance on non-state actors’ responsibilities within the context of the ongoing debate about whether NGOs have direct legal obligations under international human rights law. It suggests opportunities to enhance accountability for child safeguarding through existing human rights and children’s rights law mechanisms. Section 5 offers concluding remarks.
2. Aligning child safeguarding with international children’s rights law
Child safeguarding fundamentally aligns with children’s rights to respect for their human dignity, physical and psychological integrity, and equal protection under the law. These rights have been recognized in several international human rights law instruments, including the Declarations of the Rights of the Child in 1924 and 1959,Footnote 35 the International Covenants,Footnote 36 and the Universal Declaration of Human Rights.Footnote 37 These rights have also been recognized in regional human rights instruments including the American Convention on Human RightsFootnote 38 and the African Charter on Human and People’s Rights.Footnote 39 The CRC reinforces these rights and marks a ‘paradigm shift’ in seeing children as rights-bearing individuals.Footnote 40 The ACRWC is the only other comprehensive instrument dedicated to children’s rights.
While the text of the CRC does not expressly use the term ‘safeguarding’, several of its provisions are relevant. These provisions address the wide range of risks children may face through organizational operations, programmes, and personnel. They include the protection from all forms of violence (Article 19), the prohibition against torture or other cruel, inhuman or degrading treatment or punishment (Article 37(a)), the right to respect privacy which extends to the protection of a child’s bodily integrity (Article 16), the right to survival and development (Article 6), the right that school discipline is administered consistently with a child’s dignity (Article 28(2)) and rights that protect children against economic exploitation (Article 32), sexual exploitation and abuse (Article 34), and other forms of exploitation (Article 36).Footnote 41
Particular attention should be given to Article 19 of the CRC, which the CRC Committee views as the ‘core provision’ guiding discussions and strategies to address and eliminate all forms of violence in the context of the CRC.Footnote 42 Article 19 states that:
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1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
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2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment, and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
The CRC Committee has made significant interpretations of Article 19 that are relevant to child safeguarding. While respecting children’s evolving capacities, the CRC Committee emphasizes that all individuals under 18 should always be ‘in the care of’ someone – whether primary or proxy caregivers, or under the de facto care of the state.Footnote 43 The CRC Committee further states that ‘parent(s), legal guardian(s) or any other person who has the care of the child’ covers those with ‘clear, recognized legal, professional-ethical and/or cultural responsibility’ for the child.Footnote 44 As well as parents, foster and adoptive parents, and guardians under various legal systems, such as kafalah of Islamic law,Footnote 45 the CRC Committee includes extended family, community members, educational staff, early childhood personnel, child caregivers employed by parents, recreational and sports coaches, youth group leaders, those overseeing work environments, and institutional staff (both governmental and non-governmental) in caregiving roles across healthcare, juvenile justice, and residential care settings within this definition.Footnote 46 The CRC Committee identifies the state as the de facto caregiver for children without primary or proxy caregivers, including child-headed households, children in street situations, children of migrating parents, or unaccompanied children.Footnote 47
Moreover, the CRC Committee’s interpretation makes Article 19 applicable in all settings. It defines ‘care settings’ as places where children spend time under the supervision of their ‘permanent’ primary caregiver, like a parent or guardian, or a ‘temporary’ proxy caregiver, such as a teacher or youth group leader, covering short-term, long-term, one-time, or recurring periods.Footnote 48 Three types of care settings are identified: conventional environments like family homes, schools, early childhood care, after-school programmes, and places for leisure, sports, cultural and recreational activities, and religious worship; medical, rehabilitative and care facilities, alongside workplace and justice-related settings; and neighbourhoods, communities, and camps or settlements for refugees and people displaced by conflict or natural disasters.Footnote 49 The CRC Committee expressly states that Article 19 covers the perpetration of violence against children by professionals and state actors who have misused their power over children within settings such as schools, residential homes, police stations, and justice institutions.Footnote 50
This broad interpretation of Article 19(1) arguably renders the phrase ‘in the care of …’ unnecessary and blurs the distinction between this article and other CRC provisions addressing children’s right to physical and psychological integrity. The legislative history of the CRC indicates that Article 19 originated from an initial Polish draft with a wide scope, stating that ‘The child shall be protected against all forms of neglect, cruelty, and exploitation….’Footnote 51 However, subsequent proposals after the first reading narrowed its scope specifically to abuse and neglect by the child’s parent, legal guardian, or other person responsible for the child’s care. Furthermore, the legislative history indicates that the NGO Ad Hoc Group referred to this provision as the ‘Article dealing with intra-familial child maltreatment’, suggesting it may have been intended to be limited in scope to family settings.Footnote 52 The legislative history provides no further elaboration, and existing scholarship endorses, rather than critiques, the CRC Committee’s broad interpretation.Footnote 53
At its widest, therefore, Article 19 reflects a contemporary understanding of the wide range of settings in which children are vulnerable to abuse and the necessity to protect all children from harm. This interpretation makes Article 19 applicable in all settings including familial, organizational, and community settings. At its narrowest, however, it applies only in family and residential settings providing alternative care.Footnote 54
The CRC contains other provisions highly relevant to child safeguarding that extend beyond the direct context of violence. These include Article 3 (best interests), Article 3(3) (standard setting for organization responsible for care and protection), Article 12 (children’s right to express their views and be heard), and Article 39 (remedies). Each of these provisions will be briefly examined in turn. Article 3(1) stipulates that the best interests of the child should be a primary consideration in all actions concerning children, whether undertaken by state or non-state entities. Notably, Article 4 of the ACRWC provides that the best interests of the child should be ‘the primary consideration’ (emphasis added). The best interests’ principle cannot be used to justify practices that conflict with children’s human dignity and right to physical integrity.Footnote 55 The prioritization of children’s best interests is justified due to their unique situation, including dependency, maturity, legal status, and limited ability to advocate for themselves.Footnote 56 Without explicit attention to their best interests, they may be overlooked by those involved in decisions affecting them.Footnote 57 Article 3(1) has been extensively analysed in academic literature,Footnote 58 and will not be addressed in detail here, except to emphasize that imposing obligations on non-state entities within an international treaty is significant.Footnote 59 Notably, earlier drafts of this article referred to ‘official’ bodies, but this term was removed during the drafting process without any explanation for the change.Footnote 60
Critical to child safeguarding but often overlooked by its ‘omnipresent sibling’ Article 3(1),Footnote 61 Article 3(3) establishes states’ duty to establish and oversee standards for organizations responsible for children’s care and protection. Article 3(3) requires states to:
…ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
The CRC legislative history reveals an interesting debate regarding this provision, starting with the revised Polish draft, which called for the creation of ‘special organs’ to ‘supervise persons and institutions directly responsible for the care of children’.Footnote 62 The text was modified to extend to ‘officials and personnel of institutions’ to cover, for example, the board of directors of a hospital or an orphanage.Footnote 63 During the second reading, further amendments were proposed to reflect the shift in many countries away from the institutionalised care of children.Footnote 64 ‘[I]nstitutions, services and facilities’ was ultimately included in the text.
The phrase ‘shall conform with the standards…’ appears to derive from the International Labour Organization’s proposed text, which included ‘(appropriate) training, qualifications and competent supervision’.Footnote 65 Initial concerns arose due to its overlap with what was to become Article 18(2)Footnote 66 and potential bureaucratic burdens on volunteer-run institutions.Footnote 67 The final proposal included ‘suitability of their staff’, understood to encompass appropriate training and qualifications.Footnote 68
Subsequent interpretative guidance of the CRC Committee sheds some light on Article 3(3). In 2002, the Committee became the first UN human rights treaty body to address the role of the ‘private sector’, including businesses, NGOs, and profit and non-profit private associations,Footnote 69 as service providers.Footnote 70 The CRC Committee explained that Article 3(3) requires states to set and enforce standards in line with the CRC through monitoring public and private institutions, services, and facilities.Footnote 71 It recommended legislative measures and a permanent monitoring mechanism to ensure compliance of non-state service providers, irrespective of whether the service has been specifically contracted by the state.Footnote 72 This was reiterated in General Comment No. 5Footnote 73 and again in General Comment No. 16, in which the CRC Committee highlighted that inadequate oversight, inspection, and monitoring of these business enterprises and non-profit organizations delivering services for children can lead to serious child rights violations, including violence, exploitation, and neglect.Footnote 74
Eekelaar and Tobin suggest that Article 3(3) aims to apply the best interests’ principle to the specific domain of ‘institutional’ care and related services.Footnote 75 This is supported by the legislative history, which suggests the focus was on entities working with children ‘in need of care and protection’ or similar categories defined by law. Article 20 of the CRC, which provides that children deprived of their family environment shall be entitled to special protection and assistance by the state, further supports this interpretation. Moreover, the subsequent development of the UN Guidelines for the Alternative Care of Children, welcomed by the UN General Assembly in 2010,Footnote 76 provides an international benchmark for such standards.Footnote 77
However, it is also arguable that the scope of Article 3(3) is not strictly limited to residential care and related services. In General Comment No. 8, the CRC Committee highlights the increasing visibility of violence against children in various settings since the adoption of the CRC and emphasizes that the CRC, like all human rights instruments, is a ‘living instrument’ whose interpretation evolves.Footnote 78 The CRC Committee also refers to Article 3(3) in other guidance not focused on residential care and related services.Footnote 79 If one accepts the Committee’s expansive interpretation of ‘care settings’ in relation to Article 19, Article 3(3) should arguably have a similar wide application for ‘internal system coherence’.Footnote 80 This broader interpretation would support the proposition that states have a specific obligation under the CRC to establish and monitor standards for all organizations working with children including, but not limited to, residential care facilities, schools, sports clubs, and religious associations, as well as organizations involved in humanitarian and development efforts.Footnote 81
While it remains to be authoritatively settled, a broader interpretation of Article 3(3) strengthens the connection between the CRC text and the practice of child safeguarding in all organizations working with children.Footnote 82 However, this interpretation must not overshadow the heightened vulnerability of children without family-based care, who face significant risks of severe mistreatment and abuse.Footnote 83 Institutions and services for these children demand greater oversight consistent with Article 20 of the CRC. Furthermore, preventing violence against children in ‘institutionalised’ or residential care requires targeted strategies beyond what would typically fall under child safeguarding measures.Footnote 84
Children’s right to express their views and have them taken into account, as outlined in Article 12, is also fundamental for child safeguarding. The CRC Committee and growing scholarship articulates the mutually reinforcing nature of children’s right to protection and their right to participation.Footnote 85 Much violence against children goes unchallenged, the CRC Committee explains, because children have come to accept certain forms of abusive behaviour and because child-friendly reporting mechanisms do not exist.Footnote 86 The CRC Committee calls for children’s empowerment and participation to be central to protection strategies.Footnote 87 Moore suggests that meaningful child participation is a key strategy for child safeguarding, contributing towards redressing children’s lack of physical power, their lack of resources, and limited power in relationships with adults and within institutions.Footnote 88
Finally, the CRC mandates penalties, compensation, judicial action, and measures to promote recovery after harm caused or contributed to by ‘third parties’,Footnote 89 including Article 19(2) and Article 39.Footnote 90 The CRC Committee has explained that meeting this obligation requires child-sensitive mechanisms – criminal, civil, or administrative – that are known by children and their representatives, are prompt, accessible, and provide adequate reparation for harm suffered’.Footnote 91 Oversight agencies, including national human rights institutions, can also provide remedies.Footnote 92 Although not mentioned expressly by the CRC Committee, non-profit or charitable regulators could be particularly relevant agencies in considering remedies for child safeguarding.Footnote 93 These agencies can proactively investigate and monitor abuses and may have regulatory powers allowing them to sanction organizations that infringe children’s rights.Footnote 94
3. Child safeguarding roles and responsibilities: The state vis-à-vis NGOs
3.1 State duty to protect
Having established a normative foundation for child safeguarding under international children’s rights law and outlined state obligations to protect children from harm in organizational settings, the question arises regarding the scope of these obligations – specifically, whether the state may be held accountable for violations by non-state entities.
Traditionally, human rights law has been viewed as binding solely on states, meaning that only actions or failures by state entities could result in legal responsibility under international law.Footnote 95 Within this ‘state-centric’ perspective of international human rights law, scholars and human rights treaty bodies developed the concept of the state’s ‘obligation to protect’.Footnote 96 This builds upon the ‘due diligence’ doctrine in customary law, which holds a state legally responsible for the actions of private individuals or entities when the state itself is not directly culpable.Footnote 97 While the due diligence doctrine does not require the state to prevent all harmful actions by private actors within its control and jurisdiction, it does require the state to take appropriate steps to ensure that private individuals or entities will not cause harm.Footnote 98
Like the other major international human rights treaties, the CRC endorses the obligation to protect children’s rights against interference by non-state actors. This is derived from Article 2, which requires states to ‘respect and ensure’ all the rights under the CRC. In the context of child safeguarding, for instance, this means that states must take all appropriate measures to protect children from state actors engaging in acts or omissions that would constitute a violation of those articles that relate to children’s right to protection from violence (i.e., the obligation to respect) as well to protect children from non-state actors doing the same (i.e., the obligation to protect).Footnote 99
Interestingly, the CRC Committee’s work contains few express references to due diligence, as is understood by human rights lawyers.Footnote 100 Its limited use of the term stands in contrast to the extensive application of the standard by the Committee on the Elimination of Discrimination against Women and in jurisprudence related to violence against women.Footnote 101 The CRC Committee makes one brief mention in General Comment No. 13, where it explains that the obligations of the state are,
due diligence and the obligation to prevent violence or violations of human rights, the obligation to protect child victims and witnesses from human rights violations, the obligation to investigate and to punish those responsible, and the obligation to provide access to redress human rights violations.Footnote 102
By comparison, the ACRWC Committee has expounded upon the standard of due diligence on a number of occasions.Footnote 103 It has interpreted duties of due diligence as forming part of states’ obligations under Article 1 of the ACRWC to adopt such legislative or other measures as may be necessary to give effect to its provisions.Footnote 104 To prevent violence, the state must ‘identify vulnerable groups prone to abuse and take special measures to prevent violence from occurring’.Footnote 105 Where the state fails to show due diligence to prevent or investigate violence perpetrated by third parties, it assumes responsibility under international law for non-state actors.Footnote 106
One of the ACRWC Committee’s first decisions under its communications procedure addressed a state’s responsibility for child rights violations by non-state actors. The case concerned children sent ostensibly to attend private Qur’anic schools (daaras) in urban centres of Senegal.Footnote 107 The children were found to be abused, forced to beg on the streets, kept in unsafe and unhygienic conditions, deprived of clean water, sanitation, and medical treatment, and the promised education. It was alleged that the state failed to take sufficient measures to protect these children, violating several provisions of the ACRWC.Footnote 108 The ACRWC Committee emphasized that states’ obligation to protect the rights in the ACRWC includes measures to ensure that third parties (including institutions) do not infringe on children’s rights.Footnote 109 Moreover, and to be discussed further below, it affirmed the individual responsibility of non-state actors to respect children’s rights does not relieve the state of its obligations to respect, protect, and fulfil human rights.Footnote 110 In considering Article 16 of the ACRWC (protection against child abuse and torture), the ACRWC Committee cited the Committee against Torture’s interpretative guidance that states are responsible when they know or should know of torture or ill-treatment by private actors and fail to exercise due diligence to prevent, investigate, prosecute, and punish such acts.Footnote 111
To date, the CRC Committee, whether internationally or not, has framed its analysis of state obligations in terms of the ‘obligation to protect’ rather than expressly invoking the due diligence standard.Footnote 112 In elaborating on state obligations to protect in General Comment No. 16, the CRC Committee identifies three scenarios where states can be held responsible for child rights violations: failing to take necessary, appropriate, and reasonable measures to prevent and remedy violations; collaborating with entities that violate rights; and tolerating such infringements.Footnote 113 While failures to prevent and address violations fall under the obligation to protect, collaboration with violators constitutes a breach of the obligation to respect.Footnote 114 This interpretation seems to blur the lines between the state’s direct actions (or inactions) that violate rights (i.e., the obligation to respect) from its failure to prevent third parties from doing so (i.e., the obligation to protect). While the distinction between these legal obligations requires sharpening, the CRC Committee has nonetheless provided substantial guidance on the ‘necessary, appropriate and reasonable measures’Footnote 115 states must take to prevent and address violence in organizational settings.
3.2 Content and scope of state responsibility
The CRC Committee’s general comments, days of general discussion,Footnote 116 and concluding observations and recommendations for states offer insights into the content and scope of state responsibility to protect children from harm in organizational settings. Aspects of the United Nations General Assembly ‘Guidelines for the Alternative Care of Children’ provide complementary guidance on measures for residential care settings specifically.Footnote 117 This international guidance is complemented – and in some cases further developed – by the ACRWC Committee and the Committee of the Parties to the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse (Lanzarote Committee).Footnote 118
States’ obligations necessarily include those basic elements for creating an enabling environment such as the ratification of international human rights instruments,Footnote 119 the prohibition of all forms of violence against children in all settings, and the provision of effective redress and reparation for child victims.Footnote 120 They also include child-friendly legal and judicial procedures, basic and targeted services, and educative measures to shift harmful attitudes, customs, and behaviours.Footnote 121 These obligations extend beyond organizational settings, while also influencing measures implemented at the organizational level.
Certain features more specific to organizational settings can also be distilled. These can be categorized into five primary areas. First, states should set standards and ensure oversight and monitoring of organizations working with children. This includes developing and implementing child protection policies, ethics codes, protocols, and standards of care across all state and non-state childcare services and settings, including daycare centres, schools, hospitals, sports clubs, and residential institutions.Footnote 122 This elaborates on states’ obligations under Article 3(3) discussed earlier. The ACRWC Committee guides states to require organizations working directly with children to adopt ‘child safeguarding’ policies.Footnote 123 The CRC Committee has also started using the term ‘safeguarding’ in its more recent concluding observations and recommendations.Footnote 124 On monitoring, the CRC Committee emphasizes that this should include unannounced visits and focus on children’s well-being, not only on the physical conditions of facilities and adequacy of services.Footnote 125
Second, states should ensure measures for screening and recruiting individuals working with children. Although General Comment No. 13 does not address these processes explicitly, earlier CRC Committee recommendations stress that individuals working with children should have proper qualifications and be screened for any background of violence.Footnote 126 It can also be recalled that Article 3(3) includes an emphasis on ‘suitability of staff’ as part of the standards that states should establish.Footnote 127 The ACRWC Committee recommends a legislatively based screening process to ensure that ‘wholly unsuitable persons’ are not employed in schools, institutions linked to the care system, or any organization that works with children, even as volunteers.Footnote 128 The Lanzarote Committee similarly calls for states to ensure comprehensive and ongoing screening procedures for all caregivers, including volunteers.Footnote 129 CRC Committee observations and recommendations emphasize the importance of barring individuals convicted of child abuse from having contact with children, especially in professional roles.Footnote 130
Third, all individuals working with children should receive initial and ongoing training.Footnote 131 Training should cover policy standards, non-violent discipline, child development, and the needs and rights of vulnerable groups, including children with disabilities.Footnote 132 The CRC Committee has emphasized that training should promote attitudinal shifts towards non-violent discipline methods and reduce the stigma associated with victims of sexual abuse.Footnote 133 In its recommendations for the Holy See, for example, the CRC Committee recommended providing guidance to all persons in authority to prioritize the best interests of the child, including in cases of child sexual abuse, across all Catholic churches, organizations, and institutions worldwide.Footnote 134
Fourth, children should be engaged and empowered in line with Article 12 of the CRC. States should provide accurate, accessible, and age-appropriate information to empower children with life skills, self-protection strategies, and guidance on positive peer relationships.Footnote 135 The CRC Committee recommends educational programmes to prevent sexual abuse by increasing children’s awareness and teaching protective skills.Footnote 136 The Lanzarote Committee emphasizes the need for regular awareness-raising about abuse, including drawing attention to the manipulation of children’s trust by persons close to them.Footnote 137 The CRC Committee also recommends children’s active participation in developing violence-prevention strategies,Footnote 138 and the necessity of developing accessible, confidential, child-friendly, and effective complaint and reporting mechanisms in organizational settings.Footnote 139 Additionally, it emphasizes the importance of ensuring children are informed about these mechanisms, involved in their design, and that their special needs are taken into account.Footnote 140 The Lanzarote Committee highlights the need for support mechanisms to assist children to report sexual violence in institutional settings.Footnote 141
Finally, states should provide effective mechanisms to respond to violence against children. The CRC Committee recommends that states establish systems to report and investigate cases of suspected abuse within institutions.Footnote 142 These systems should train professionals to recognize and report violence, mandate reporting for those working with children,Footnote 143 protect reporters from retaliation or liability,Footnote 144 and ensure a coordinated, multidisciplinary response to reports of violence.
The CRC Committee’s guidance, while extensive, can be challenging to navigate due to the multitude of actions it prescribes. Moreover, the determination as to whether a state has acted with the required level of diligence in a specific context can only be decided on a case-by-case basis. Until recently, the CRC lacked a formal mechanism for adjudicating complaints, which meant an absence of case law applying these standards to individual situations. However, this changed with the introduction of the Optional Protocol to the CRC on a communications procedure (OPIC).Footnote 145 The CRC Committee’s first investigation under Article 13 of OPIC addressed the treatment of children in residential care, including some institutions run by non-state entities. The case helps to illustrate how the CRC Committee applies these standards to a specific set of facts.
3.2.1 Case example: Chile
The CRC Committee’s investigation concerned the treatment of children in residential programmes falling under the responsibility of the state. The centres could be classified into two groups: 11 centres under direct state control, and approximately 240 state-subsidised centres run privately by accredited partner organizations. In addition, there were private centres, which were not state-accredited and over which the state exercised no control. Although not legally regulated, the courts tolerated these centres and sent children to them because of a shortage of places at the other centres. There had been complaints about rights violations in the centres for many years. The CRC Committee received a request in July 2016 to conduct an inquiry. After following the relevant procedural steps, the Committee decided to conduct a confidential inquiry into the potential grave or systematic violation of several provisions of the CRC affecting a significant proportion of children and adolescents in the care of the state party.Footnote 146
The Committee determined that the state violated 19 articles of the CRCFootnote 147 and was directly responsible for the violations in all the centres, not only those directly under its control. The Committee explained that:
…the State was directly responsible for violations perpetrated in centres under the direct control of the National Service for Minors, in centres administered by partner organisations and in other centres. The responsibility is the State’s not only because the State has failed to exercise oversight but also because privately managed centres, which are delegated by the State to act in an official capacity, must be considered State agents for the purposes of attribution of responsibility.Footnote 148
The Committee held that the state also violated its obligation to protect, by failing to provide ‘adequate care and protection for children and adolescents admitted to the residential protection system… or the care necessary for their recovery’.Footnote 149 The Committee’s observations regarding Articles 3(3), 4, 12, 19, 34, and 37(a) are particularly instructive in considering the substance of state responsibilities to protect children from harm in organizational settings.
The Committee found Chile in breach of Article 3(3) due to inadequate infrastructure, insufficient number of specialized personnel, insufficient monitoring, storage of unreliable information about children’s situation, and placing children in the care of organizations that operated without any oversight.Footnote 150 Chile was found in breach of Article 4 (general measures of implementation) for lacking a comprehensive, rights-based children’s law, poor inter-ministerial coordination, insufficient data on children’s situations, and reliance on a subsidy-based funding model that shifted responsibility to partner organizations and encouraged prolonged placements.Footnote 151
Children’s right to express their views and to be heard (Article 12) was violated as the state failed to inform children of their rights, respect their views before centre admissions, and provide access to a judge and a lawyer. Additionally, the state failed to establish clear and recognized protocols for making complaints and reporting rights violations and did not ensure children could voice their opinions in decisions that affected their daily lives.Footnote 152
Chile was found in breach of its obligations under Article 19 as violence had become normalized both among children and adolescents and between children, adolescents, and adults. Guidelines and staff training on non-violent disciplinary techniques and peer violence were inadequate.Footnote 153 The prevention of sexual violence among peers and by adults was similarly deficient, in breach of Article 34. The state failed to respond in a timely and effective manner to cases. Specific protocols for managing and preventing sexual abuse were non-existent or ignored, leading to unreported cases and, even when reported, a lack of timely administrative and judicial action. There was a lack of staff training on preventing sexual abuse.Footnote 154 Chile was found in breach of its obligation to protect children from torture and/or cruel, inhuman, or degrading treatment (Article 37(a)), with such practices occurring under the pretext of discipline and restraint.
The CRC Committee recommended the state close one of the centres with immediate effect,Footnote 155 adopt the ‘comprehensive protection paradigm’ of the CRC, assume full responsibility for the regulation, monitoring, and funding to ensure the rights of all children in the system are respected, protected, and fulfilled, as well as to establish reparation mechanisms for victims.Footnote 156
3.3 A common set of minimum standards
The findings from the inquiry, although context-specific, offer practical insights into how states can fulfil their obligations under the CRC to protect children from violence in organizational settings, including those operated by non-state entities. States cannot absolve themselves of responsibility for protecting children from harm in organizational settings, even when the care is provided by non-state entities. This principle has been reinforced in different legal systems. Illustrative examples include the ACRWC Committee’s decision on Senegal discussed earlier,Footnote 157 and the European Court of Human Rights (ECtHR) ruling in O’Keeffe v. Ireland concerning the sexual abuse of a schoolgirl in a school run by the Catholic Church.Footnote 158 The cases acknowledge children as rights-bearing individuals and the violation of fundamental rights in contexts of a public service and where the individuals impacted were particularly vulnerable.Footnote 159
In each case, a lack of state oversight and regulation of the private institution was a key factor. In Chile, the state failed to monitor both state-run and privately managed centres. Additionally, more than 400 children were living in centres not subject to any oversight by the state. In Senegal, there were no minimum standards for daaras. In Ireland, the state’s mechanisms for oversight in schools managed by the Catholic Church were insufficient. Specifically, the existing guidance for complaints against teachers contained no obligation for state authorities to monitor teacher conduct or facilitate complaints from children or parents.Footnote 160 Moreover, the school inspection system did not oblige inspectors to inquire into or to monitor teacher’s behaviour or engage directly with students and parents.Footnote 161
Unique to the ECtHR is the discussion of preventing ‘foreseeable risks’. In addition to the obligation to establish a legislative and regulatory framework for protection, the ECtHR’s case law shows that states must take reasonable measures to mitigate ‘foreseeable risks’ of ill-treatment, both in cases involving specific risks to identified children and in situations involving general risks to unidentified individuals.Footnote 162 The ECtHR has stated that this obligation should not impose an ‘excessive burden’ on authorities, particularly considering the ‘unpredictability of human behaviour and operational choices … in terms of priorities and resources’.Footnote 163 However, measures should at least provide effective protection, especially for children and vulnerable individuals, and should address risks the authorities knew or should have known about.Footnote 164 The concept of foreseeable risk enriches the CRC Committee’s guidance by emphasizing the need for case-by-case assessments of potential harm, reinforcing the state’s duty to proactively protect children from harm while avoiding a ‘one-size-fits-all’ approach.
In sum, even without consolidated international guidance on child safeguarding, the work of the CRC Committee, other treaty bodies, and courts suggest the emergence of consistent minimum standards for states to meet their international obligations to protect children from harm in all organizational settings. These standards could be distilled as follows: States must establish and enforce rights-based legal frameworks to protect children in organizational settings, whether state-run or privately managed. They must rigorously monitor organizations in contact with children, including non-state entities, to ensure compliance with minimum safety standards. Where such standards are absent, states are obligated to establish them, consistent with Article 3(3) of the CRC. Additional measures may be required in response to prevent harm, depending on identified risks to specific children or groups of children. In all contexts, accessible and child-friendly complaint mechanisms must be in place, and these should be responded to promptly and appropriately. Both the CRC Committee and ACRWC Committee emphasize the importance of training personnel working with children. States are required to ensure clear protocols for managing and preventing abuse within organizations, investigate reports of violence, and remedy abuse, including those by third parties.
Even so, certain issues remain unresolved. Treaty bodies and courts have yet to examine cases involving organizations that do not traditionally qualify as ‘public services’, such as sports clubs or leisure facilities. However, as discussed earlier, the CRC Committee’s broad definition of ‘care settings’ and a growing understanding of the environments where children are vulnerable to abuse support the extension of these standards to all organisations in contact with children. If such standards are to be applied universally, it raises the question of what level of monitoring and additional measures would be necessary to meet the threshold without imposing an ‘excessive burden’ on authorities. Moreover, while these international standards provide an important baseline, they must be adapted to national contexts, taking into account socio-legal frameworks and cultural nuances to ensure their effectiveness and relevance.
4. Expanding accountability for child safeguarding
4.1 NGO responsibilities
The preceding section established that states have clear obligations to protect children in organizational settings, including those organizations run by non-state entities. However, there are contexts where states may lack the will or capacity to develop and enforce these obligations.Footnote 165 This is particularly evident in countries recovering from armed conflict, experiencing disasters, or where international donors engage directly with non-state actors without government oversight.Footnote 166 Even in countries where the state is involved, its capacity to oversee, monitor, and take direct action is generally limited to organizations it manages directly or through licensing and oversight mechanisms.Footnote 167 Additional challenges arise when organizations are beyond the jurisdictional control of any one state,Footnote 168 such as in the case of international NGOs delivering programmes for children.
In these circumstances, the reliance on the state as the ‘primary guardian’ of children’s rights against the actions of non-state actors breaks down.Footnote 169 Without clear standards, effective external scrutiny, and mechanisms for accountability, some organizations will have little incentive to proactively prevent the risk of harm to children and take appropriate actions if abuse occurs.Footnote 170 This raises the question of whether NGOs have ‘real direct’ human rights legal obligations, beyond just ‘vicarious’ or ‘indirect’ obligations. This question is part of a broader, extensive scholarly debate about duty-bearers beyond the territorial state, a discussion too expansive to cover fully in this article. Nevertheless, a brief outline is necessary to situate the CRC Committee’s relevant guidance.
Many scholars have argued for expanding the scope of international human rights law to include actors beyond states, such as intergovernmental organizations, companies, NGOs, and even individuals, given the profound shifts in global governance, economic interdependence, and the increasing in influence of private entities on human rights.Footnote 171 Some argue that the language of human rights instruments is not exclusively limited to states, suggesting that non-state actors also bear obligations.Footnote 172 Others contend it should be undisputed that non-state actors have a negative obligation to respect the human rights of others.Footnote 173 Since international human rights law obligates states to protect human rights from interference by private entities – including through requiring states to proscribe certain private duties or outlaw certain harmful conduct – it inherently assigns negative obligations to non-state actors.Footnote 174 Yet others make the case from an effectiveness standpoint, asserting that for international law to be effective in protecting human rights, it must prohibit everyone from assisting governments in violating those principles, or committing abuses directly.Footnote 175
However, other scholars dispute this view, arguing that the state’s positive obligation to regulate harmful conduct by non-state actors does not make the latter guarantors of human rights provisions.Footnote 176 They further caution that extending the range of duty bearers under existing human rights treaties could create significant legal uncertainty.Footnote 177 In particular, some scholars view the state-centric nature of human rights mechanisms, which link obligations to jurisdiction,Footnote 178 and the challenge of extending ‘subjecthood’ and international legal personality to entities without recognized public functions, as key obstacles to broadening the scope of duty-bearers under international human rights law.Footnote 179
In tandem with this academic debate, human rights treaty bodies have provided important interpretative guidance on the roles and responsibilities of non-state actors.Footnote 180 Fraser suggests that, in their efforts to work with states and stakeholders on human rights implementation, these treaty bodies likely encountered gaps in the binding text regarding non-state duties and sought to address them.Footnote 181 In this context, the interpretive work of the CRC has been particularly bold and progressive.
In General Comment No. 5, for instance, the Committee affirms that the responsibilities to respect and ensure children’s rights go ‘beyond the State and State-controlled services and institutions to include children, parents and wider families, other adults, and non-State services and organisations’.Footnote 182 In doing so, the CRC Committee expressly concurs with the Committee on Economic, Social and Cultural Rights, which has stated that:
While only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society – individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sector – have responsibilities regarding the realization of the right to health. States parties should therefore provide an environment which facilitates the discharge of these responsibilities.Footnote 183
In General Comment No. 14 on best interests, the CRC Committee states that the right of children to have their bests interests assessed and taken as a primary consideration, pursuant to Article 3(1) has implications not only on all measures undertaken by governments but also decisions made by ‘civil society entities and the private sector, including profit and non-profit organizations, which provide services concerning or impacting on children’,Footnote 184 reinforcing the express text of the CRC.
In General Comment No. 16, the CRC Committee acknowledges that there is presently no internationally legally binding instrument on the business sector’s responsibilities towards human rights.Footnote 185 Nonetheless, it argues that the duties and responsibilities to respect children’s rights extend beyond state and state-controlled entities to include private actors and businesses.Footnote 186 To support this conclusion, the Committee draws on a mix of treaty law and soft law, including the UN Guiding Principles on Business and Human Rights.Footnote 187 General Comment No. 16 is commonly associated with business responsibilities, however it expressly includes not-for-profit organizations within scope.Footnote 188 It also expressly calls upon ‘international organisations’ to have ‘standards and procedures to assess the risk of harm to children in conjunction with new projects and to take measures to mitigate risks of such harm’.Footnote 189
While the Committee’s clear position on ‘private actors and businesses’ has been used to advance responsible business conduct,Footnote 190 it has not yet been leveraged for advancing the responsibilities of NGOs. As Carolei notes, NGOs are often viewed as the ‘good guys’ in international affairs, leading to their relative ‘underregulation’ in international human rights law, compared to other non-state actors such as businesses.Footnote 191 Although not legally enforceable, it seems reasonable to argue that the Committee’s guidance supports the view that NGOs, like businesses, have responsibilities under the CRC, including the duty to respect children’s right to physical and psychological integrity.
The CRC Committee has also encouraged non-state service providers to adopt self-regulation mechanisms to ensure compliance with international human rights standards, including the CRC.Footnote 192 Importantly, in General Comment No. 16, the Committee makes it clear that voluntary actions and initiatives cannot replace state action and regulation, nor do they absolve businesses of their responsibility to respect children’s rights.Footnote 193 Existing literature primary focuses on self-regulation within the business sector;Footnote 194 however, similar efforts also exist within NGOs in humanitarian and development settings.Footnote 195 Some of these encompass child safeguarding. For instance, in humanitarian contexts, NGOs have developed self-regulatory frameworks, leading to the development of guidelines and good practices.Footnote 196 Nevertheless, the effectiveness of these measures remains limited.Footnote 197
Moreover, in the context of protecting children from abuse, self-regulation is arguably inadequate.Footnote 198 As demonstrated by numerous cases, voluntary measures are often inconsistently followed, and without external oversight, organizations may prioritize their reputation over children’s best interests, particularly when senior staff are implicated in the abuse.Footnote 199 Given the wide variety of NGOs interacting with children in any given country, there is a need for responsibility within and among these entities.
States can, and should, establish minimum standards through legal and administrative measures, but substantial work is necessary at the organizational level. The concept of child safeguarding requires organzations to anticipate potential risks and implement measures to mitigate them before harm occurs. As such, effective safeguarding must be tailored to each organization’s unique context, considering factors such as size, structure, staff composition, governance, target demographics, missions, values, programmes, partnerships, services, funding sources, geographic locations, and cultural contexts. At the same time, child safeguarding requires clear lines of accountability and the referral of suspected abuse to relevant authorities. The investigative and judicial processes that follow are responsibilities of the state and cannot be managed by non-state actors.
The question of whether NGOs can be held accountable independently of state oversight remains crucial, especially from the perspective of a child victim whose access to justice should depend on whether the perpetrator is a state or a non-state actor.Footnote 200 The inability of current legal mechanisms to address violations by non-traditional duty-bearers does not diminish their human rights obligations, nor should the lack of recognition of NGOs as duty-bearers prevent their consideration as such as international law evolves.Footnote 201 Some scholars argue that the debate over NGOs ‘real direct’ legal obligations hinges on accountability and enforcement mechanisms. While current treaty bodies cannot enforce these responsibilities for NGOs due to the state-centric nature of the human rights regime,Footnote 202 the absence of a direct accountability mechanism does not negate the responsibility itself.Footnote 203 As Knox highlights, the distinction between the existence of a responsibility and the mechanism for its enforcement is crucial.Footnote 204 This is exemplified by the Genocide Convention, which established a direct duty not to commit genocide on individuals long before an international tribunal was established to prosecute such crimes, illustrating that responsibilities can precede enforcement mechanisms.Footnote 205
Even so, the question of whether NGOs can be held accountable independently of state oversight is further complicated by serious objections to making non-state actors duty bearers under international human rights law,Footnote 206 and even less enthusiasm for enhancing NGO accountability specifically.Footnote 207 One major concern is that states might neglect their own duties, shifting responsibilities to non-state actors and thus weakening their own accountability.Footnote 208 This was foreshadowed in the Senegal case example above where the ACRWC Committee affirmed that the individual responsibility of non-state actors to respect children’s rights does not relieve the state of its obligations to respect, protect and fulfil human rights.Footnote 209 In the case of NGOs, states might even instrumentalize human rights accountability to restrict civil society space under the guise of enforcing obligations.Footnote 210
To counter these risks, Monnheimer advocates for narrowly tailored and precisely defined human rights obligations for non-state actors.Footnote 211 Arguably, there would be wide consensus for an obligation relating to child safeguarding, given the fundamental rights at stake and the almost universal consensus for the special protections that children should be afforded. The nature of the obligation could also be differentiated based on the size and scope of an organization’s activities, including whether it has subsidiaries, exercises public functions, or serves specific populations.Footnote 212 For now, while there does appear to be a consensus that non-state actors have international human rights responsibilities, the precise scope and method of enforcement remain unclear.Footnote 213
Although not currently legally enforceable at the international level, such standards arguably have normative influence within the existing legal framework. They may serve as benchmarks for evaluation of NGO actions and contribute to fostering accountability through public scrutiny or political processes,Footnote 214 for instance. Moreover, courts and other bodies may refer to non-enforceable responsibilities for understanding legal obligations.Footnote 215 They may also act as precursors to legally binding obligations, with the potential to influence the development of customary international law or future treaty-making.Footnote 216
4.2 Using existing children’s rights mechanisms
While the debates regarding whether NGOs can be held accountable independently of state oversight continue, the existing international human rights law framework can arguably be more effectively leveraged to improve child safeguarding. In advancing greater understanding of necessary standards, the treaty bodies could articulate through their general comments, inquiries, or the state party reporting process, the constituent elements of child safeguarding as discussed in this article, setting them apart from the broader national frameworks for child protection and clarifying the respective responsibilities of states and non-state actors. The treaty bodies should continue to interrogate the measures being undertaken by states to regulate and oversee organizations working with children,Footnote 217 as well as to investigate and respond appropriately when abuse is suspected or disclosed.
The treaty bodies could also more closely examine legal and regulatory systems impacting organizational safeguarding practices, including mechanisms to enhance oversight and ensure NGO compliance with child safeguarding standards, and encourage states to utilize international cooperation to improve legal and regulatory frameworks. The discussion around regulating NGOs must consider the context of diminishing civic space in many countries,Footnote 218 balancing an awareness of the limits of self-regulation with the risk of overregulation that could negatively impact children’s rights and human rights more broadly. Treaty bodies could also elaborate on the contours of specific legislation such as mandatory reporting laws and ‘abuse of trust’ provisions. These laws are crucial not only for states to fulfil their obligations to protect, but also for influencing organizational approaches to child safeguarding and providing children access to justice and remedies when their rights are violated. While the CRC Committee does not have the power to issue binding decisions, its interpretative guidance can significantly influence state practices by offering authoritative insights into how international human rights standards should be applied,Footnote 219 thereby encouraging alignment in state actions and policies regarding child safeguarding.
There are also opportunities for advancing accountability for child safeguarding through other children’s and human rights mechanisms. One such avenue is Article 13 of OPIC, exemplified by the Chile inquiry, which empowers the CRC Committee to launch inquiries and examine cases of grave or systematic violations of children’s rights. The CRC Committee is also authorized to receive and review individual complaints against a state that is a party to the OPIC, filed by individuals or groups within those states. The ACRWC also has a communications procedure, set out in Article 44.Footnote 220 In contrast to the OPIC, the ACRWC Committee can admit a communication from a state non-signatory to the ACRWC in the ‘overall best interests of the child’.Footnote 221 The other treaty bodies coordinated by the Office of the High Commissioner for Human Rights are alternative avenues for enhancing accountability for child safeguarding.Footnote 222 As Sloth-Nielsen notes, children’s rights are not solely the domain of the CRC Committee at the global level.Footnote 223 Other bodies, such as the CEDAW Committee and the Committee on the Rights of Persons with Disabilities, make significant contributions in areas affecting girls and children with disabilities, respectively.Footnote 224 Concurrently, the Human Rights Council’s Special Procedures have the authority to conduct investigations and publish reports and opinions.Footnote 225
Although these mechanisms are sometimes viewed as ‘weak’ forms of accountability,Footnote 226 they offer alternative ways of prompting state oversight of organizations working with children and promoting NGO compliance with child safeguarding standards. While neither the CRC Committee nor the UN special rapporteurs focusing on specific countries or issues have the power to enforce compliance directly, their capacity to highlight rights violations often triggers governments to take corrective actions.Footnote 227
5. Conclusion
Violence against children is a real and foreseeable risk in any organizational setting where adults and children, as well as peers, interact. It is a global challenge – one that transcends sectors, communities, and contexts. It is a child rights issue and deserves robust scholarly attention as such. This article offers a novel contribution to the literature by examining child safeguarding through the lens of international children’s rights law.
This article demonstrates that the link between international children’s rights law and child safeguarding is not merely a vague aspiration to realize children’s rights. Instead, child safeguarding is grounded in clear legal obligations established in the CRC. Key among these is states obligation to prevent violation of children’s rights to physical and psychological integrity in all organizational settings, including those operated by non-state actors (‘the responsibility to protect’). Article 3 of the CRC unequivocally requires both state and non-state entities to make the best interests of the child a primary consideration in all actions affecting them. In addition, Article 3(3) imposes an obligation on states to establish and oversee standards for organizations responsible for children’s care. While academic commentary on Article 3(3) has largely confined its application to residential care and related services, this article argues for a broader interpretation. These obligations should extend to all organizations working with children, including but not limited to residential care facilities, schools, sports clubs, religious organizations, and those involved in humanitarian and development efforts. This broader application is supported by the CRC Committee’s expansive interpretation of ‘care settings’ under Article 19, the growing recognition of how organizational cultures, structures and activities can create or exacerbate risks of child abuse, and the dynamic interpretative methodology for human rights treaties.
Moreover, this article uniquely synthesizes guidance from the CRC Committee, other treaty bodies, and courts to propose an outline of minimum standards applicable across diverse organizational contexts. States must establish and enforce rights-based legal frameworks to protect children in organizational settings, whether state-run or privately managed. They must ensure rigorous monitoring of organizations in contact with children, including non-state entities, to ensure compliance with minimum safety standards. Where such standards are lacking, states are obligated to establish them, consistent with Article 3(3) of the CRC. Accessible and child-friendly complaint mechanisms must be in place, and these should be responded to promptly and appropriately.
Certain issues remain unresolved, including the nature of monitoring required for sectors that have historically operated with limited oversight, and in countries facing conflict or disaster. These challenges highlight the need for further scholarly exploration into the specific responsibilities of NGOs to respect children’s rights, including respect for their human dignity and physical and psychological integrity. This article identifies an opportunity to advance NGO child safeguarding responsibilities, leveraging the CRC Committee’s progressive interpretations of non-state responsibilities. These responsibilities are distinct yet complementary to states obligations, and currently lack mechanisms for enforcement. The extensive body of work on business and human rights provides a potential framework for exploring the development of legally binding obligations and enforcement mechanisms for NGOs in the future.
This article also underscores the potential of existing human rights mechanisms to advance child safeguarding. Treaty bodies can play a crucial role by providing interpretative guidance that clearly defines the constituent elements of child safeguarding, distinguishing them from broader national frameworks for child protection, and clarifying the respective responsibilities of states and non-state actors. Treaty bodies should continue to interrogate the measures being undertaken by states to set standards for organizations working with children, as well as state efforts to oversee, monitor, investigate, and respond appropriately when abuse is suspected or disclosed. The influence of such guidance is significant, with the potential to shape both state and organizational practices.
Alternative avenues for strengthening state oversight and ensuring compliance with safeguarding standards may be found in mechanisms such as the OPIC and Human Rights Council’s Special Procedures. However, the UN human rights system, including the CRC Committee, is facing an unprecedented funding crisis, which may constrain what is realistically possible.Footnote 228 In this environment, the increasing references to the CRC and related standards by human rights courts, such as the ECtHR and the Inter-American Court of Human Rights, become even more significant in reinforcing children’s rights and holding states and organizations accountable.Footnote 229
This study contributes to a deeper understanding of how international law can be leveraged to strengthen protections for children in organizational settings worldwide. While the legal instruments and mechanisms explored in this article are essential for achieving child safeguarding objectives, they are not sufficient on their own. Some aspects of child safeguarding require legal measures, but others extend beyond the legal domain. Achieving meaningful progress in child safeguarding requires the active engagement of multiple stakeholders, including human rights treaty bodies, courts, states, researchers, and civil society. These efforts must go beyond legal compliance to promote approaches that respect children as rights-bearing individuals. This shift involves tackling entrenched power imbalances within many organizational settings and advocating for children’s empowerment and participation strategies. Effective strategies must acknowledge children as stakeholders and actively involve them in creating solutions that address the inherent power imbalances with adults, within organizations and in the wider community.Footnote 230 Implementing such an approach demands time and meaningful collaboration at the local level to make child safeguarding resonate with local communities and organizations. Ultimately, this approach holds promise to contribute towards disrupting the cycle of organizational failures in safeguarding children and prioritizing children’s needs, voices, and rights, thereby making children’s rights meaningful and actionable in practice.
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