Children have the rights to health, to be heard in matters related to their own health care, and to decisions based on clinical need in the best interests of the child, including decisions related to interventions for children who use drugs.
In accordance with these rights, States should:
i. Develop accessible, child-sensitive prevention, drug dependence treatment, and harm reduction services.
ii. Ensure that decisions regarding access to drug-related health services are taken in the best interests of the child, with due regard to their evolving capacities.
iii. Remove legal age restrictions on existing drug-related health services.
iv. Ensure that young people who use drugs have access to drug-related health information, and counselling without parental or guardian consent, and that treatment or harm reduction service provision without parental or guardian consent is possible when in the best interests of the individual.
Where these interventions concern drug-related criminality, States should:
v. Target efforts primarily at diversion from the criminal justice system and promote rehabilitation over punishment.
vi. Refrain from criminalising children because of their drug use or possession of drugs for personal use.
vii. Adhere to international juvenile justice standards in all efforts to address and respond to drug-related criminality among children and young people.
The Committee on the Rights of the Child has repeatedly called for ‘child-sensitive’ and ‘youth friendly’ drug treatment and harm reduction services.637 It has consistently recommended that States Parties put in place and adequately fund such services for this age group638 and has condemned the practice of placing children in compulsory drug detention and rehabilitation centres.639 The Working Group on Arbitrary Detention has also recommended that drug treatment and harm reduction services be made available to children on a voluntary basis, without oversight or mandate by the judiciary, and with health care services provided by health professionals.640 Treatment and harm reduction services should be of sufficient quality and acceptable for the needs of this age group, based on the dynamics of drug use among them. Similarly, the UN General Assembly Special Session 2016 Outcome Document promotes ‘non-discriminatory access to a broad range of interventions … giving special attention to the specific needs of … children and youth’.641
To facilitate access to services for those in need, legal age restrictions on existing services should be removed642 and parental consent conditions should be amended.643 Legal age restrictions inhibit the ability to conduct best interests assessments644 based on clinical need645 and in consultation with the young person.646 While parental consent or support for access to services and health information may be desirable, it should not be a compulsory condition of access. The Committee on the Rights of the Child has been consistent on this matter with regard to adolescent health and sexual and reproductive services.647 Alternative methods for determining children’s access to services, rooted in the best interests of the child, have been developed through case law on sexual and reproductive health services.648 In some countries, these methods have already been adapted to drug-related services.649
A range of children’s rights treaties and provisions apply in the context of drug-related criminality. The UN General Assembly Special Session 2016 Outcome Document recognises the importance of ensuring that ‘the specific needs, including mental and physical needs, of underage drug offenders and children affected by drug-related crime are appropriately considered, including in criminal justice proceedings where required, including by providing those in need with drug treatment and related support services’.650 In addition, international juvenile justice standards are set out in the Convention on the Rights of the Child,651 the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (also known as the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (also known as the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, and the Guidelines for Action on Children in the Criminal Justice System.652 These all emphasise the need for a focus on drug use prevention and drug treatment for those involved in the juvenile justice system.653 Beyond such provisions, however, juvenile justice standards apply in their entirety to children involved in drug-related criminality. For example, the minimum age of criminal responsibility should be suitably high, and dual ages of criminal responsibility applying a lower age for drug offences should be avoided. Moreover, the detention of children should be avoided wherever possible.654
Children should not be criminalised for their drug use. The Committee on the Rights of the Child has been consistent on this matter due to criminalisation’s counterproductive effects and has recommended the repeal of laws criminalising drug use among children.655 A high court in South Africa has held that the criminalisation of the possession of cannabis for personal use, where the same conduct was not criminalised for adults, violates children’s rights to equality and – given the profound negative impact of exposure to the criminal justice system – the right to have their best interests taken into account.656
Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64; Committee on the Rights of the Child, Concluding Observations: Luxembourg, UN Doc. CRC/C/15/Add.92 (1998), para. 39; Committee on the Rights of the Child, Concluding Observations: Iraq, UN Doc. CRC/C/15/Add.94 (1998), para. 23; Committee on the Rights of the Child, Concluding Observations: Czech Republic, UN Doc. CRC/C/15/Add.201 (2003), para. 51; Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc. CRC/C/MDA/CO/3 (2009), para. 55(g); Committee on the Rights of the Child, Concluding Observations: Tunisia, UN Doc. CRC/C/TUN/CO/3 (2010), para. 54; Concluding Observations: Austria, UN Doc. CRC/C/AUT/CO/3-4 (2012), para. 51; Committee on the Rights of the Child, Concluding Observations: Fiji, UN Doc. CRC/C/FJI/CO/2-4 (2014), para. 52; Concluding Observations: Ghana, UN Doc. CRC/C/GHA/CO/3-5 (2015), para. 52(f); Committee on the Rights of the Child, Concluding Observations: Angola, UN Doc. CRC/C/AGO/CO/5-7 (2018), para. 30(a); Concluding Observations: Portugal, UN Doc. CRC/C/PRT/CO/5-6 (2019), para. 36(c); Concluding Observations: Micronesia, UN Doc. CRC/C/FSM/CO/2 (2020), para. 55(d); Concluding Observations: Cook Islands, UN Doc. CRC/C/COK/CO/2-5 (2020), para. 43(3); Concluding Observations: Belarus, UN Doc. CRC/C/BLR/CO/5-6 (2020), para. 34(a).
Committee on the Rights of the Child, Concluding Observations: Luxembourg, UN Doc. CRC/C/15/Add.92 (1998), para. 39; Committee on the Rights of the Child, Concluding Observations: Iraq, UN Doc. CRC/C/15/Add.94 (1998), para. 23; Committee on the Rights of the Child, Concluding Observations: Czech Republic, UN Doc. CRC/C/15/Add.201 (2003), para. 51; Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc. CRC/C/MDA/CO/3 (2009), para. 55(g); Committee on the Rights of the Child, Concluding Observations: Tunisia, UN Doc. CRC/C/TUN/CO/3 (2010), para. 54; Committee on the Rights of the Child, Concluding Observations: Austria, UN Doc. CRC/C/AUT/CO/3-4 (2012), para. 51; Committee on the Rights of the Child, Concluding Observations: Fiji, UN Doc. CRC/C/FJI/CO/2-4 (2014), para. 52; Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64.
Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2-3 (2011), paras. 38–39; Committee on the Rights of the Child, Concluding Observations: Viet Nam, UN Doc. CRC/C/VNM/CO/3-4 (2012), paras. 43–44.
Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/47/40 (2021), para. 71.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 1(k).
Committee on the Rights of the Child, Concluding Observations: Moldova, UN Doc No CRC/C/MDA/CO/4–5 (2017), para 34(f).
See Committee on the Rights of the Child, Concluding Observations: South Africa, UN Doc. CRC/C/15/Add.122 (2000), para. 31; Committee on the Rights of the Child, Concluding Observations: Turkey, UN Doc. CRC/C/15/Add.152 (2001), para. 54.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 3.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 24.
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 12.
See, e.g., Committee on the Rights of the Child, Concluding Observations: Marshall Islands, UN Doc. CRC/C/15/Add.139 (2000), para. 51; Committee on the Rights of the Child, Concluding Observations: Latvia, UN Doc. CRC/C/15/Add.142 (2001), para. 40.
Gillick v. West Norfolk and Wisbech AHA [1985] UKHL 7.
See, e.g., National Institute for Healthcare and Clinical Excellence (UK), Needle and Syringe Programmes: Public Health Guideline (2014); see also World Health Organization, Technical Brief: HIV and Young People Who Inject Drugs (2015).
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(e).
Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 40.
UN General Assembly, Resolution 40/33: United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), UN Doc. A/RES/40/33 (1985); UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990); UN General Assembly, Resolution 45/113: United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, UN Doc. A/RES/45/113 (1990); Economic and Social Council, Guidelines for Action on Children in the Criminal Justice System, UN Doc. E/RES/1997/30 (1997).
In particular, UN General Assembly, Resolution 45/112: United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN Doc. A/RES/45/112 (1990), paras. 25, 35, 44, 45.
See also Committee on the Rights of the Child, General Comment No. 10: Children’s Rights in Juvenile Justice, UN Doc. CRC/C/GC/10 (2007).
Committee on the Rights of the Child, Concluding Observations: United Kingdom (Isle of Man), UN Doc. CRC/C/15/Add.134 (2000), para. 38; Committee on the Rights of the Child, Concluding Observations: Indonesia, UN Doc. CRC/C/15/Add.223 (2004), para. 72; Committee on the Rights of the Child, Concluding Observations: Armenia, UN Doc. CRC/C/15/Add.225 (2004), paras. 62–63; Committee on the Rights of the Child, Concluding Observations: Bolivia, UN Doc. CRC/C/15/Add.256 (2005), para. 62(c); Committee on the Rights of the Child, Concluding Observations: Norway, UN Doc. CRC/C/15/Add.263 (2005), para. 44(b); Committee on the Rights of the Child, Concluding Observations: Denmark, UN Doc. CRC/C/DNK/CO/3 (2005), para. 55(d); Committee on the Rights of the Child, Concluding Observations: Russian Federation, UN Doc. CRC/C/RUS/CO/3 (2005), para. 77(b); Committee on the Rights of the Child, Concluding Observations: Kiribati, UN Doc. CRC/C/KIR/CO/1 (2006), para. 49(c); Committee on the Rights of the Child, Concluding Observations: Marshall Islands, UN Doc. CRC/C/MHL/CO/2 (2007), para. 55(c); Committee on the Rights of the Child, Concluding Observations: Afghanistan, UN Doc. CRC/C/AFG/CO/1 (2011), para. 52(d); Committee on the Rights of the Child, General Comment No. 20: Implementation of the Rights of the Child during Adolescence, UN Doc. CRC/C/GC/20 (2016), para. 64.
In the Matter of the State and LM and 3 Others, Director of Public Prosecutions, Minister of Justice and Correctional Services, Minister of Social Development, Minister of Health, Minister of Basic Education, Minister of Police and Centre for Child Law (amicus curiae), High Court of South Africa, Gauteng, Local Division, Johannesburg, Case Nos. 97/18, 98/18, 99/18, and 100/18 [2020].