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Discrimination in Policy

A policy can be described as a plan of action devised to deliver an intended outcome, and more broadly refer to agendas produced by governments to deliver some sort of socially desirable outcome – like a housing policy designed to ensure people have adequate housing.

These pages explore discrimination in social policy, using case studies, and discuss ways that social policies can be created, reviewed and revised to ensure they are compliant with children's right to non-discrimination.

Email comments and suggestions to info@crin.org.

More information will be available here shortly on challenging discrimination in organisational policy.

Introduction

Policy discrimination is a regrettable reality in many places around the world. Government policies often discriminate against people on the basis of gender, ethnicity, religion or other ground, and age. Sadly, many children therefore experience multiple layers of policy discrimination; female children for example experience a 'double disadvantage' when policies discriminate on the basis of age and gender.

This discrimination can be either direct (such as policies that specifically exclude young people from access to a service or a benefit for example) or indirect (such as policies that prioritise the needs of home owners, who are normally not children). But this does not have to be the case; many good social policies are produced that are either non-discriminatory or go one step further and actively challenge discrimination.

To add another layer of complexity to the issue, social policy often results in both intended and unintended outcomes. Many policies devised with 'good' intended consequences in reality have many discriminatory unintended consequences.  Redressing policy discrimination requires an analysis of both.

Case study 1: Example of direct discrimination

Under the Fair Pay Commission, all Australian workers under 21 are subject to a ‘junior wage’ 1. The ‘junior wage' sets workers rates of pay as a percentage of the full award pay for their industry. This ensures that some young people do not receive equal pay for equal work. Table one shows the fraction of adult wages that young workers are entitled to by age 2.

Fraction of adult wages awarded

Lowest Australian Industry Award

Highest Award

Under 16 year olds

30.00%

70.00%

16 year olds

37.50%

80.00%

17 year olds

45.00%

90.00%

18 year olds

55.00%

90.00%

19 year olds

72.50%

90.00%

20 year olds

85.00%

95.00%

More information

Case study 2: Example of indirect discrimination:

The planning policy document guiding town development rejuvenation across the UK, Planning Policy Statement 6: planning for town centres 3, squarely emphasises the benefits of retail and nightlife functions in town centres. Both of these functions however, overlook the way children and young people might use a town centre 4 – as children lower income means they are normally marginal consumers and they do not use night clubs. Researchers have found that young people are often drawn to town centres for reason outside of shopping and consumption, including green and open spaces 5. This policy indirectly discriminates against children, as the unintended consequences of this policy will be town planning that overlooks children's needs.

In Norway, municipalities have a statutory duty to consult with children in urban planning initiatives. Norsk Form, the Norwegian Mapping authority and the Norwegian Ombudsperson for Children's Office piloted a project to support children’s input by using Google Earth and digitised maps to explain how they use urban spaces. This method is now used systematically. Read more here (CRIN Review, 2008, p. 19).

More information

Footnotes

Australian Fair Pay Commission, 2009 'Wage Setting Decisions' (online) http://www.fairpay.gov.au/fairpay/WageSettingDecisions/ (accessed 16/09/09)

Australian Government 2008 'Australian Government Submission to the Australian Fair Pay Commission' (online) http://www.workplace.gov.au/workplace/Publications/WorkplaceRelations/MinimumWageDetermination-Archive.htm (accessed 16/09/09)

Office of the Deputy Prime Minister, 2005 Planning Policy Statement Number 6: Planning for town Centres Office of the Deputy Prime Minister, London

Beunderman, J., Hannon, C. and Bradwell, P. 2007 Seen and Heard: Reclaiming the public realm with children and young people Demos, London

Wooley, H. and Johns, R. 2001 'Skateboarding: the city as a playground' Journal of Urban Design, 6 (2)

Understanding Policy Discrimination: The Policy Cycle

Government policy is generally produced by governments to address an area of acknowledged ‘social concern’ and is produced in a mechanism described as a process called a 'policy cycle'. While there are many different versions of a policy cycle, the general phases described in a policy cycle include 6:

  • Issue identification – where a social issue is identified as in need of a policy to redress. This can emerge from discussion between the government and lobby groups, such as NGOs, or can be generated in the media. An issue could be the lack of mental health care services for children, or the rise of violent crime committed against children.
  • Policy analysis – after a new issue has been identified, it will require research and reflection within governments to ensure they have sufficient information to make an informed decision. This often involves using existing research on an issue, or speaking to ‘experts’. Policy analysis usually results in a briefing paper for a minister or senior government official.
  • Policy instrument development – after reviewing the information about the issue, the various policy options are explored. This could include government sponsored awareness raising campaigns, redirecting government spending or taxation, delivering new services or making or changing laws. In this phase, a specific policy or mix or policies, is proposed, usually in a written document.
  • Consultation – to test the validity and feasibility of the proposed policy, various 'stakeholders' are consulted about the policy instrument. This often draws on a range of key stake holders, for business and the community.
  • Coordination – Once a draft policy has been produced and consulted on, the government needs to decide who is going to be responsible for coordinating the policy. Often, for large policies, many government agencies are involved co-ordination needs to be assigned to someone. Sometimes coordinating new policies with existing polices can also be an issue. For example, is the Department of Health going to be responsible for delivering new health education for school children, or the Department of Education? These are all issues that need to be considered.
  • Decision – Once a policy has been devised, consulted about, and ideas about who is responsible for it discussed, it is time to make a decision about the policy and decide if the government wants to make it happen. Final decision are made by the ‘cabinet’ in some democracies, or ministers and presidents in others.
  • Implementation – In this phase, the policy is made real and ‘rolled out’ through a change in law, the delivery of a programme, a shift in funding or whatever might be requires.
  • Evaluation – After the policy has been implemented, a thorough review is necessary to make sure that the policy has been effective and has no unwanted indirect consequences. Often, the focus is on if the outcomes of the policy match the intended consequences, and if this match is efficient enough.

Each stage of the policy cycle however can reinforce discrimination against children and young people in unique ways.

There are many ways to overcome these potential pitfalls and produce good policies however. These include participation, education and awareness raising, complaints and remedies, and commissioners and ombudspeople.

Footnotes

Bridgman, P., Davis, G. and Althaus. C. 2007 Australian Policy Handbook, Allen and Unwin, Sydney


Policy gone wrong!

  • Issue identification – the 'issue' identified may be based on stereotyping or discrimination against young people. For example, the government may decide it needs to “do something” about 'problem young people' hanging out on the street. They may be identifying as issue in this case that violates children's right to play, use public space and not be discriminated against.
  • Policy analysis – Age based discrimination is prevalent across the world, and policy makers may only consult with people and research that confirms this. They may also rely heavily on ideas gathered from other policies that have also discriminate against children.
  • Policy instrument development – Children and young people are not often engaged as policy makers. Policy instruments are more often designed by adults, and therefore can reflect age-based prejudices. Cultural, ethnic and linguistic diversity can also be overlooked in policy development as well.
  • Consultation – children may be overlooked as 'stakeholders' and may not have been consulted, or their consultation may only be tokenistic and inadequate.
  • Co-ordination – many of the government bodies that oversee policy initiative overlook the specific needs of young people. They may not be aware of the issues children experience, or it may not be their priority.
  • Decision – children are often not empowered in decision-making processes. They are often not in positions of power to make these decisions themselves, and they are generally denied the right to vote for those who make decisions for them.
  • Implementation – policies can be implemented in ways that discriminate against children; they are often overlooked as beneficiaries in the roll out of policies and the experiences of indirect discrimination are easily ignored.
  • Evaluation – Unless children's voices and experiences are explicitly sought in the evaluation process, the effects of policy on children can be ignored.

There are many ways to overcome these potential pitfalls and produce good policies however. These include participation, education and awareness raising, complaints and remedies, and commissioners and ombudspeople.

Preventing Policy Discrimination 1: Children's participation

Introduction - Case studies - Child participation?

Introduction


Good, non-discriminatory policy happens when a range of tools and techniques are engaged in the policy process. At the core, it is critical that policy production reflects on and acknowledges the unique experiences of children, and does so through engaging them in participatory processes in policy production. Other useful tools and techniques are also discussed on the next page.

Developing good policies always requires consultation, but a child rights framework suggests that policy makers need to go one step further and work to ensure young people's meaningful participation in the entire policy process. Although this logic seems obvious enough - that in developing policies for children and young people, children and young people themselves should be should be key actors - such an approach has traditionally not prevailed.

However as the importance of youth participation in general decision making processes is being increasingly recognised, some governments are including children’s voices in policy formulation, implementation and evaluation. This increase has been pushed in part by the recognition that it generally leads to more effective policies, but that it is also a civil and political right for children to be involved.

  • The right of young people to be involved in policy production
    United Nation Declaration on the Rights of the Child: Article 12

“States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”.

Also read General Comment No. 12 on the Right to be Heard

The World Programme of Action for Youth to the Year 2000 and beyond (A/Res/50/81 - 1) also asks policy makers to “take into account the contribution of youth in designing, implementing and evaluating national policies and plans affecting their concerns”.

  •  The added benefits of youth participation

“Normally when we need to know about something we go to the experts, but we tend to forget that when we want to know about youth and what they feel and what they want, that we should talk to them" (Kofi Annan).

On a very simple level, it is obvious that children and young people have the best understanding of their own lives, and as such can offer policy makers a wealth of information. Rather than seeing children and young people as a problem to fix, or as victims of an issue that needs fixing, we need to see them as active participants is shaping the best solutions.

Case study one: HIV and AIDS youth programming

Many of the most successful policy outcomes have emerged from policy processes that have been committed to empowering children and young people by actively seeking their input and allowing their experiences to inform the development of the policy agenda. For example, the UNAID/WHO argued that most of the slow down in the spread of HIV and AIDS could be attributed to successful youth programming (2). 

Case study two: youth unemployment in France

Policy outcomes can also fail because they lack meaningful participation with young people. For example in early 2006, in an attempt to address youth unemployment in France, the Contract Premiere Embouche was introduced. Targeted at people under 26, this law made it easier for young people to be hired on short-term contracts, and easier for these contracts to be terminated within the first two years of employment.

However, without adequate consultation with young people in the production of this law, it was poorly received and sparked nation wide protests and strikes. Many young people criticised the law as adding to the precariousness of their employment status, and as many as two million young people and their supported protest to demand the law be revoked.

In contrast, Germany has very similar ‘flexible’ youth contract laws in place – but the introduction of these did not come with protests or strikes. Largely, this is though to be due to the extensive consultation with all stakeholders that took place, including and especially young people themselves.

This failing demonstrates how inappropriate and unpopular policy can be without adequate youth participation, and how ultimately, however well intentioned, can become impossible to implement (3).

What is Children’s Participation?

The UN Programme on Youth defines youth participation as the active and meaningful involvement of young people in all aspects of their own, and their communities, development. Involving young people in policy production is essential in combating policy discrimination.

Effective participation needs to focus on two elements:

  1. Scope: Many children and young people need to be engaged in the process, and these children need to represent the diversity of youth experiences to ensure that ‘double disadvantaging’ can be addressed. This can often take considerable planning and resources.
  2. Quality: Policy makers need to consider not only the number of young people engaged in the process, but also the quality of the of the participation that takes place. A tokenistic attempt to engage young people is not enough to either realize their right to be heard, or to produce good policy. Again, this can often take considerable time and resourcing.

Many models of youth participation that have been proposed that reflect the quality of participation available, and these are generally represented as either a scale or a ladder.  Generally, this recognizes that better participation with children involves a genuine transfer of power from governments and those in authority to children themselves.

For policy makers, increased child participation would mean extending beyond ‘consulting’ with children, where they are posted a consultation paper or sit through a consultation regarding a particular policy instrument in the consultation phase of the policy cycle. According to the seminal description of children’s participation by Hart (4) this traditional approach would sit on level 4 or level 5 of the ‘ladder of participation’. Meaningful participation requires more.

It requires that policy makers share decisions with children; to give young people real authority when decisions are made throughout the entire policy cycle. It also requires policy makers to explore the opportunities to allow young people to ‘lead’ on policy initiatives, perhaps by driving issue identification, overseeing coordination, or taking charge on policy implementation. The ideal aim is for policy makers to work hand-in-hand with the children their policies affect, and to work in ways that genuinely share power right throughout the policy cycle.

Case study: Young people’s lead on identifying a policy issue. Young women in the DCR lobby for a national action plan for youth employment

“The YWCA-Congo has been leading an extensive lobbying campaign since 2004. YWCA-Congo has partnered with a number of other organisations to form a national coalition on youth employment which has continued to lobby the Congolese Government… The coalition has been reaching out to relevant stakeholders via print media and radio, through seminars and through a recent survey on youth attitudes to wok… As a result of these interventions, youth employment has risen up on the political agenda in the Democratic Republic of Congo. (The Ministry of Labor is now developing a National Action Plan on youth employment)”. (5)

More information

  • Sri Lanka: The Probation and Child Care Services Department will set up the first ever government forum to ensure children's participation in policy-making. The creation of the `National Children's Council' (NCC) will mark Universal Children's Day 2009. Read more.

Footnotes

1. General Assembly 1995 'World Programme of Action for Youth to the Year
2000 and Beyond A/RES/50/81' (online)
http://www.un.org/documents/ga/res/50/a50r081.htm (accessed date
01/10/09)

2. UNAIDS 2006 'AIDS Epidemic Update: December 2006' (online)
http://www.unaids.org/en/KnowledgeCentre/HIVData/EpiUpdate/EpiUpdArchive/2006/
(accessed date 01/10/09)

3. UNAIDS 2006 'AIDS Epidemic Update: December 2006' (online)
http://www.unaids.org/en/KnowledgeCentre/HIVData/EpiUpdate/EpiUpdArchive/2006/
(accessed date 01/10/09)

4. Hart, R. 1997 Children's Participation: The Theory and Practice of
Involving Young Citizens in Community Development and Environmental
Care, London: Earthscan.

5. Youth Employment Network 2007 'Joining Forces with Young People: A
practical guide for collaboration for youth employment' (online)
http://www.ilo.org/public/english/employment/yen/resources/index.htm
(accessed date 01/01/09)

Preventing Policy Discrimination 2: Education for policy makers

Education and training for policy makers on child rights and child-centered approaches to policy development is critical.

Many of the negative, unintended consequences of policy production occur when policy makers fail to consider, or do not understand, the unique experiences of children within their communities. To combat this, policy and decision makers can be equipped with the knowledge and tools to combat discrimination through training and/ or reflexive practice. Policy makers need to be aware of the direct and indirect consequences of their actions on children.

Case study:

CRED-PRO is an initiative by the International Institute for Child Rights and Development that is committed to developing and delivering child rights education to professionals in positions of power to influence children's lives. They have a range of resources available on line, including an on-line social networking site to encourage dialogue among professionals.  “CRED-PRO is intended to foster a critical mass of respect for children, their needs, their rights and their best interests among and through professionals who, by virtue of their expertise, leadership and acknowledged value, influence the lives of children, their families, and communities” 6.

Footnotes


International Institute for Child Rights and Development 2008 'Child Rights Education for Professionals' (Online) http://www.iicrd.org/work/projects/community_of_practice/CREDPRO
(accessed 10/09/09)

Preventing Policy Discrimination 3: Complaints and remedies

Strong complaint and remedy procedures need to be in established, and these need to be 'child friendly' to ensure policy discrimination can be challenged if and when it arises.

If a policy has discriminated against young people, either directly or indirectly, mechanisms need to be in place that allows children to complain and seek an effective remedy. These complaints mechanisms often rely on the establishment of strong human rights laws for young people, and legislation against age based discrimination.

In seeking to make international complaint mechanisms child friendly, Commissioner for Human Rights at the Council of Europe, Thomas Hammarberg (7), devised a series of key considerations that also apply to local complaint mechanisms:

  • Children, and those working with them, need to know that these mechanisms exist, and they need to be accessible to children
  • These mechanisms need to ensure children's unrestricted access to them. For example, there needs to be no legal requirement for parental consent
  • Children should be able to apply at any age. When other are acting on behalf of children, there needs to be a mechanism to ensure that the application is in the best interest of the child, and when the child has the capacity, with their consent
  • Groups of children and child and youth led organisations should be able to make a complaints
  • The mechanisms must be genuinely accessible to children. Each mechanism should review all aspects of their procedures to ensure that this is the case. In particular:
  • Information about the mechanism should be disseminated in child-friendly language and in places where children and their representatives are
  • Any “hurdles” on applying should be carefully reviewed from a children’s perspective.
  • Time limits on making an application should be treated flexibly in the case of child applicants who might not have had access to information on the mechanism
  • Consideration should be given to fast tracking applications from or on behalf of children, with an understanding of children’s sense of time and the urgency of remedying breaches of their rights while they still are in their childhood. Decisions should be arrived at as rapidly as possible, subject to the need for full consideration of the case. Any process for enforcement of the decision should also be speedy.
  • If the procedure includes a hearing, all aspects of it should be reviewed to ensure it is child-sensitive (see UN Guidelines in Matters of Justice for Child Victims and Witnesses of Crime - 8)
  • The whole process should be able to guarantee the anonymity of the applicant when necessary and requested
  • Those involved in the mechanisms, as decision-makers or judges and as secretariat or support staff should receive special training. Training should also be available for lawyers and others representing children before the mechanisms
  • There should be possibilities of legal aid adjusted to the needs of children
  • Summaries of decisions on applications concerning children should be issued in child-friendly language

Case study:

The Australian Human Rights Commission work hard to make their human rights and equal opportunity conciliation process accessible to children and young people. They launched a 'Discrimination; Don't Cop It' campaign which included a series of post cards, a youth friendly web site, and youth specific information about how to make complaints.

They report a positive case study about Chris, a young wheelchair user, who used their conciliation process to settle a claim with a local business.  Chris “wanted to take part in a holiday program organised by the local council at the roller skating rink. However, the rink’s owner told Chris he could only be included if four other people agreed to skate with him. He thought that Chris’ wheelchair would be a risk to other skaters. The Commission helped to resolve the problem through a conciliation meeting. The owner agreed to provide wheelchair accessible toilet facilities, develop a policy for the use of the rink by people with disabilities and pay Chris $1,000 in general damages” (9).

More information

Footnotes

7. Hammarberg, T. 2007 'Making international and regional human rights complaints / communications mechanisms child friendly' (online) https://wcd.coe.int/ViewDoc.jsp?id=1183599&Site=COE accessed 16/09/09

8. UN Economic and Social Council 2005 'UN Guidelines in Matters of
Justice for Child Victims and Witnesses of Crime, Economic and Social
Council resolution 2005/20' (online)
http://www.unhcr.org/refworld/docid/468922c92.html (accessed date 01/01/09)

9. Australian Human Rights Commission, 2007 'Discrimination, don't cop it' (online) http://www.hreoc.gov.au/complaints_information/young_people.html accessed 16/09/09

Preventing Policy Discrimination 4: Commissions and Ombudspersons

Dedicated and independent ombudspersons or commissions promoting children's rights are a crucial way to monitor and improve policy production.

Children's commissioners can be established to both review government policy and to ensure that the experiences of children and young people are given due weight in policy production. Reviewing the success of commissions and ombuds internationally reveals four essential components to their work:

  • an exclusive focus on children and young people (under 18 years of age);
  • the ability to influence law, policy and practice pro-actively and reactively;
  • the ability to review children’s access to, and the effectiveness of, all forms of advocacy and complaints systems (including the courts), and the power to initiate or support legal actions on behalf of children; and
  • the ability to conduct investigations and undertake or encourage research and promote awareness of rights among children and adults.

The close involvement of children and with children is an essential ingredient in all four components 10.

 

Information about establishing an ombudspersons' office is available here http://www.crin.org/enoc/training/index.asp

“Institutions independent of Government, such as a Children’s Rights Commissioner, are ... necessary in order to monitor, promote and protect the rights of children, and ensure that governments are held accountable for the obligations they make when ratifying the Convention on the Rights of the Child”.11

More information


Footnotes


DCI-Australia 1996 Towards Taking Australia's Children Seriously: A commissioner for children and young people (online) http://www.dci-au.org/html/aus_seriously.html (accessed 10/09/09).

Unicef UK, 2003 'Children's Rights Commissioners: Information Sheet' (online) www.unicef.org.uk/unicefuk/policies/pdf/child_commis-br.pdf (accessed 16/09/09)