Children have rights! This year we are celebrating 11 years of children's rights in the Austrian Constitution. In 2011, in fact, the National Council passed the Constitutional Law on the Rights of Children, which states in Article 1 that the best interests of the child must be a primary consideration in all government decisions.
Nevertheless, there is nothing to celebrate:The Corona crisis – the first serious acid test for the significance of this constitutional law – shows that children and adolescents take second place in state decisions – and not, as the constitution requires, have priority.
The constitutional provision cited also calls for "the best possible development" for our children and young people. At the same time, schools are closed for months, reopened under conditions that are questionable from a constitutional point of view (mandatory masks, compulsory entrance tests...) and continued under massive restrictions (hardly any sports, no singing, divided groups...). So, there is no question of the best possible development. In the extracurricular area, too, children and young people suffer massively due to restricted social contacts, closed youth centers and sports halls, canceled plays and postponed concert rehearsals.
Despite all the criticism, we do not want to forget that the Constitutional Law on the Rights of Children permits restrictions on children's rights in the event of a pandemic. However, these restrictions must be purposeful in terms of health protection and be proportionate to the harm they cause to children and young people.
As recent decisions of the Constitutional Court show, our government fails this proportionality test to a large extent.
One wonders if this has even been carried out at all, and if psychological, social and educational damage to minors has really been considered. Children, it seems, are forgotten even 11 years after the implementation of their rights in the Constitution.
In light of current developments, the 2011 Constitutional Law on the Rights of Children seems more like a marketing stunt than a constitutional law actually followed by our politicians.
Children's Rights in Austria
The validity of the Convention on the Rights of the Child in Austria
The Convention on the Rights of the Child was signed by Austria on the 26th of January 1990, approved by the Austrian National Council on the 26th of June 1992 and ratified on the 6th of August 1992 by depositing the instrument of ratification with the Secretary-General of the United Nations (Federal Law Gazette 1993/7). On the 5th off September 1992, the Convention on the Rights of the Child formally entered into force in Austria.
Federal Constitutional Law on the Rights of Children
On January 20th, 2011, the National Council passed the Federal Constitutional Law on the Rights of Children, which elevated key provisions of the UN Convention on the Rights of the Child to constitutional status, with the votes of the SPÖ, ÖVP, FPÖ and BZÖ. On February the 16th, 2011, the BVG Children's Rights entered into force.
Article 1
Every child has the right to the protection and care necessary for his or her well-being, to the best possible development and fulfillment, and to the protection of his or her interests, also from the point of view of intergenerational justice. In all actions concerning children, whether taken by public or private institutions, the best interests of the child shall be a primary consideration.
Article 2
(1) Every child shall have the right to regular personal relations and direct contact with both parents, unless this is contrary to his or her best interests.
(2) Every child who is permanently or temporarily removed from his or her family environment, which is the natural environment for the growth and flourishing of all its members, especially children, shall be entitled to special protection and assistance from the State.
Article 3
Child labor shall be prohibited. Except for limited exceptions provided by law, the minimum age for entering the labor force shall not be less than the age at which compulsory education ends.
Article 4
Every child shall have the right to appropriate participation and consideration of his or her views in all matters affecting the child, in a manner appropriate to his or her age and development.
Article 5
(1) Every child shall have the right to an upbringing free from violence. Corporal punishment, infliction of mental suffering, sexual abuse and other ill-treatment are prohibited. Every child has the right to protection from economic and sexual exploitation.
(2) Every child victim of violence or exploitation shall have the right to adequate compensation and rehabilitation. Further details shall be determined by law.
Article 6
Every child with disabilities shall be entitled to the protection and care appropriate to his or her special needs. In accordance with Article 7 (1) of the Federal Constitution, equal treatment of disabled and non-disabled children shall be guaranteed in all areas of daily life.
Article 7
A restriction of the rights and entitlements guaranteed in Articles 1, 2, 4 and 6 of this Federal Constitutional Act shall be permissible only to the extent that it is provided for by law and constitutes a measure necessary in a democratic society for national security, public peace and order, the economic well-being of the country, the defense of law and order and for the prevention of criminal acts, for the protection of health or for the protection of the rights and freedoms of others.
Article 8
The Federal Government shall be entrusted with the execution of this Federal Constitutional Law.
The Federal Constitutional Law on the Rights of Children - first and foremost to be mentioned is the "principle of priority of the best interests of the child" enshrined therein (Article 1) - is a binding standard of orientation for legislation, jurisdiction and administration, as well as for the services provided by state and private institutions.