This chapter highlights two distinct perspectives – international and domestic – on the judicial application of the Convention on the Rights of the Child (the Convention). The international perspective is framed by reference to article 4 of the Convention and the maximalist approach taken by the Committee on the Rights of the Child. The domestic perspective is conceptualised by reference to the direct and indirect application of the Convention as permitted by the reception rules in monist, dualist, and hybrid legal systems. The chapter argues that the international and domestic perspectives on the judicial application of the Convention differ on account of the different institutional positions of the bodies that control them (the Committee vs the domestic courts). The maximalist international position promoted by the Committee is often unavailable to the domestic courts, although it may be a potential inspiration to them. Canvassing these distinct perspectives provides the context for a better understanding of the limitations in the domestic courts’ engagement with the Convention, detailed in the subsequent chapters.

This chapter analyses the indirect judicial application of the Convention on the Rights of the Child (the Convention) in Australia, which is a federal state of dualist tradition. The chapter demonstrates the vulnerability of the Convention in a system of parliamentary supremacy where the Convention is not legislatively incorporated and where the Parliament can make laws contrary to it. In this context, the traditional methods of engaging with the Convention have yielded limited results where there was tension with the domestic law, but were more impactful when there was convergence between the two sets of norms, as seen in the family law context. The Convention is also weakened by the absence of a federal human rights statute. The case study of the application of the Convention by the Supreme Court of Victoria shows that human rights statutes that contain child-specific provisions facilitate the judicial application of the Convention. The chapter also illustrates the creativity of the courts, which occasionally engaged with the Convention in sui generis ways, not explicitly acknowledged as formal methods of engagement.

Drawing from the case studies on the judicial application of the Convention on the Rights of the Child (the Convention) in France, Australia, South Africa, and the United Kingdom, this chapter argues that albeit fundamentally different in form, the direct and the indirect application of the Convention, respectively, produce similar effects. Both permit a meaningful engagement with the Convention and the development of child-sensitive reasoning. The chapter highlights that alongside the traditional methods of engagement with the Convention, courts have applied it in a sui generis manner. This demonstrates that the traditional reception rules are unable to capture the diversity of courts’ interaction with the Convention. The chapter discusses the factors that influence the courts’ application of the Convention and highlights the importance of the domestic structure of reception for the judicial application of the Convention. The chapter also concludes that article 3(1) of the Convention has been a favourite of the courts, who see it as a rich repository of legal principles and standards that allow them to justify a distinct legal treatment for children.

This chapter summarises the implications of this comparative study for the development of the judicial application of the Convention on the Rights of the Child (the Convention) in jurisdictions beyond this study. It argues that domestic reception rules are a necessary starting point but do not fully explain how the courts apply the Convention. It pleads for more attention to the sui generis methods of engagement with the Convention, but also to the domestic structure of reception as an often overlooked factor that influences its application. The chapter calls for a more systematic attention to the interaction between the Convention, and the overlapping domestic and international instruments. This will enable a better understanding of the issues in relation to which courts find the Convention most useful. The chapter argues that for the Convention to preserve or claim its rightful place among international instruments with impact on domestic judicial reasoning, the added value of the Convention must be better understood. Lastly, the chapter highlights the role of the courts and the Committee on the Rights of the Child in further developing the judicial application of the Convention.

The chapter argues that the domestic judicial application of the Convention on the Rights of the Child (the Convention) is important and in need of systematic attention, especially in light of the Convention’s novelty and special features. The chapter shows that in the absence of prior systematic comparative international studies, it remains relevant to study the judicial application of the Convention through the lens of the formal domestic rules that inform the reception of the Convention in monist, dualist, and hybrid legal systems. The chapter also argues that it is not only these formal factors that affect the judicial application of the Convention, but also the domestic structure of reception wherein the Convention is received. The chapter further explains the selection of a heterogenous sample of jurisdictions, consisting of France, Australia, South Africa, and the United Kingdom, and the use of a comparative international law perspective as a theoretical framework for the book.

This chapter analyses the indirect judicial application of the Convention on the Rights of the Child (the Convention) in the United Kingdom, a dualist legal system where the Convention has not been fully incorporated through legislation. Although the courts have somewhat engaged with the Convention through the traditional methods (statutory interpretation and the development of the common law), the Convention has been given effect overwhelmingly in the context of the Human Rights Act 1998 (the HRA), and implicitly of the European Convention on Human Rights and Fundamental Freedoms 1951 (the ECHR). The joint application of the Convention with the HRA–ECHR tandem has been both a facilitating and an inhibiting factor in the judicial effect of the former. Like courts in other jurisdictions, UK courts have also applied the Convention in sui generis ways, diversifying thus the opportunities for its usage. The overlap between the Convention and other legal standards makes the assessment of its impact difficult, but it is clear that the application of the Convention is associated with a more child-sensitive judicial reasoning.

The chapter analyses the judicial application of the Convention on the Rights of the Child (the Convention) in South Africa, which is a hybrid legal system with both monist and dualist features. The largely successful judicial application of the Convention has been facilitated by the country’s constitution, which contains a provision on children’s rights and generous provisions regarding the judicial application of international treaties. The chapter shows that courts favour the application of the Convention as an interpretation tool for the children’s rights clause in the Constitution, but they neglect other possibilities of engagement, such as self-execution or statutory interpretation. This has resulted in lost opportunities to give judicial effect to the Convention. Courts also engage in sui generis forms of application, which has diversified the means of its application. The impact of the Convention is sometimes difficult to discern because of its overlap with domestic instruments. Nonetheless, the Convention has demonstrated its value added when gaps were found in the domestic law, although most often the influence of the Convention has been subtle and diffuse.

This chapter analyses the direct application of the Convention on the Rights of the Child (the Convention) by the Court of Cassation and the Council of State in France, a monist state that has not passed legislation to incorporate or transform the Convention domestically. The chapter highlights the historical contentiousness of the direct application of the Convention, the different approaches taken by the two supreme courts, and the positive impact of the direct application of the Convention once this became more widely accepted. The chapter argues that the direct application of Convention articles gives them a quasi-constitutional status, and permits their mainstreaming into decision-making. It also shows that the direct application of the Convention, and especially of its article 3(1), has added value to judicial reasoning in relation to children. The chapter demonstrates that, contrary to other views, the direct application of the Convention by courts depends to a large extent on factors independent of it rather than on its intrinsic features, such as the alleged weak remedial framework, the generality of its terms, or the formulation of its articles.

The Australian legal system is not an island, and Australian law has felt the influence of law and legal ideas from other jurisdictions, particularly other common law countries. Australian law has also been shaped by public international law both directly and indirectly and this interaction has become increasingly important as the scope and content of international law have grown. The relationship between Australian law and international law is mediated by Australia’s constitutional framework in which the separation of powers between the executive, legislature and the courts holds central place. Unlike the constitutions in many other legal systems, the Australian Constitution does not address the relationship between international and domestic law, and most of the relevant legal principles are to be found in the common law. This chapter examines how each arm of government in Australia has engaged with international law, identifying areas where the relationship is well settled (as it is in relation to treaties) and areas where there remains some uncertainty (as in relation to customary international law).