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Developing the UN Guidelines for the Alternative Care of Children

Video of Nigel Cantwell explaining the Guidelines.
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And so tell me, Nigel, why were the UN Guidelines for Alternative Care for Children developed? The idea for developing the guidelines, in fact, came from someone in the UNICEF office in New York, child protection specialist Alexandra Yuster, who’s working a lot on juvenile justice questions. And she realised that in the Convention on the Rights of the Child, there was a lot on juvenile justice. There were many different guidelines on juvenile justice questions at the international level. And she thought that the amount of attention being given to alternative care was insufficient and that there was a real need for a whole arsenal, if you like, of standards for alternative care, just like there are for juvenile justice.
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So she started the ball rolling. And we carried out some studies and we started talking with people about the need for this and including the Committee on the Rights of the Child and obviously, the non-governmental organisations who were involved. And so the idea moved forward within the international community. And we got governments on board also who were sympathetic to this idea and realised the fact that looking after children needing alternative care was not adequately addressed in the international standard. So that’s how it all came about. So the guidelines aren’t mandatory. Do you want them to be? Well, there were good reasons not to have any mandatory instrument in relation to this question, in fact, several reasons.
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First is that there are so many treaties or so many proposals for treaties that the international community is not ready for more binding instruments. The second thing is that we couldn’t have gone into so much detail in a treaty. You can’t get agreement on such detailed provisions, which we needed to get through in order to give policy orientations on alternative care. Finally, a treaty needs to be ratified. So if we’ve drawn up a treaty or tried to draw up a treaty, it would have been an extraordinarily dangerous thing because so many countries might not have ratified it.
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They would be prepared to say it’s a good idea to have these policy orientations and guidance, but they wouldn’t have been able necessarily to say, OK, we are taking this formally on board like they did the Convention on the Rights of the Child. So doesn’t the fact that they’re not mandatory, does that make them weak? Well, it potentially makes them weak if we don’t use them. This is the problem is always when we have an instrument, even a treaty, if we don’t use the treaty, if we don’t refer to the treaty, if we don’t hold governments and other players to account, then obviously, the treaty or the guidelines or whatever, they just remain something on paper.
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But what has happened with these guidelines is that there was such a lot of support, particularly from the Committee on the Rights of the Child, from UNICEF, from the non-governmental organisations, there was such a lot of support for them that they’ve kind of taken on not a mandatory nature as such but a very persuasive nature because we’ve been using them because the Committee on the Rights of the Child refers to them constantly when they are reviewing States Parties reports and saying to states, well, this is what the guidelines say. How come you’re not complying or why are you not complying with those guidelines?
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And obviously, the guidelines are built on the rights that are contained in the Convention on the Rights of the Child. They have this basis. And we are trying to move forward on that basis.

In this video, international expert Nigel Cantwell is being interviewed by Charles McFarlane. Nigel Cantwell has been working for the human rights of children for over 30 years. His experience comprises both the development of international standards and helping to devise policies for their implementation at national level. Nigel’s special focus has become the protection of children’s rights in alternative care and in adoption. He has carried out assessments of child protection systems on all continents, has written and lectured extensively on these issues, and was lead consultant for the development of the UN Guidelines for the Alternative Care of Children.

Charles lives in Scotland and has care experience himself. Charles is interested to know why the Guidelines for the Alternative Care of Children were developed.

Nigel is able to use his first-hand experience being involved in the drafting of the Guidelines to explain the reason they were developed. He speaks about how the concerns regarding children coming into care unnecessarily – and into care without proper standards – were issues that prompted their inception. He explains how the Guidelines were thought necessary because globally many preventive or responsive actions have not been good enough and how this led to the perceived need to develop international standards – guidelines rather than obligations – for promoting good practice. Nigel explains how the Guidelines have set out the way in which the international community has agreed that countries might best move forward in the sphere of alternative care.

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This content is taken from University of Strathclyde online course
Getting Care Right for All Children: Implementing the UN Guidelines for the Alternative Care of Children
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