The EU as a Children’s Rights Actor Law, Policy and Structural Dimensions

This edited collection critiques, from an interdisciplinary perspective, the growing body of EU children’s rights activities in the light of broader global political, economic and legal processes. Specifically, it interrogates whether EU intervention effectively responds to what are perceived as global violations of children’s rights; the extent to which EU efforts to uphold children’s rights complement and reinforce parallel national and international pursuits. Moreover, it scrutinises the compatibility of EU children’s rights measures with the principles and provisions enshrined in the UN Convention on the Rights of the Child (CRC).

ly and constructively transmuted where and when it really matters to produce tangible and positive changes to children's lived experiences on the ground.
Beyond decorative provision towards embedding children's rights within the fabric of the EU Almost all of the chapters in this collection draw attention to the noble intentions of many EU children's rights measures, particularly those enacted in the wake of the EU Agenda for the Rights of the Child, which are now increasingly calibrated to reflect international children's rights norms. The EU child protection initiatives described in the chapter by Lind-Haldorsson and O'Donnell, and the proposed criminal justice initiatives touched upon by Rap in her chapter are a case in point. But there are also a range of EU measures that still fail to fully (or even partially) accommodate the rights of children. Many still do so in a way that is tokenistic and naïve insofar as they pay lip service to notions such as best interests or the right to be heard, but do little to address or even acknowledge some of the more insidious violations of children's rights. The contribution by Savirimuthu, for instance, reveals how the EU's preoccupation with protecting children in the online environment on the one hand, and empowering them to become responsible, digital citizens on the other, fails to address the short and long term effects on children of routine data-profiling undertaken by commercial operators. This, in itself, serves to manipulate children's choices, impede upon the development of their sense of identity and dangerously pervert children's sense of autonomy, all in the name of commercial gain. In the same vein, Drywood's contribution highlights how the EU's regulation of free movement responds first and foremost to the economic demands of commercial operators (in this case the immensely profitable and powerful football industry), whilst glossing over the reality and potential for those provisions to facilitate the exploitative recruitment and, in some cases, reckless dismissal of child players.
All of the chapters highlight, to some degree, that the true test of the EU's effectiveness in advancing children's rights lies not just in the formal fidelity to children's rights principles within the letter of the law, but in their conscientious implementation at the national level, and in the willingness of the EU institutions to hold national authorities to account where implementation is lacking (see particularly the chapters by Ferreira and Lind-Haldorsson and O'Donnell). The contribution by Stalford reveals just how impervious supposedly accessible EU justice mechanisms are to children's rights-related claims at all stages of the legal and policy process, suggesting that even the most child-sensitive approach at EU level will only succeed if it is met by the requisite political will and sensitivity at the national level. Lamont's chapter has also drawn attention to the importance of effective cross-national cooperation between judges and front-line advisors tasked with administering and interpreting EU children's rights measures, with a view to achieving consistency and transparency in their application across different jurisdictions.
The collection has also featured a range of broader perspectives of how the institutional, legal, procedural and cultural landscape of the EU might be adapted to respond more persuasively to the call to embrace children's rights more fully, so that it progresses beyond decorative provision within isolated legal instruments towards a more integral part of the EU legal and policy fabric. A more comprehensive children's rights mainstreaming strategy is posited as an essential starting point in this regard. Schuurman's 'seven steps' model has provided concrete suggestions as to what a child mainstreaming strategy might look like, informed by the views and experiences of EU institutional representatives, existing academic critiques of specific case studies, and good practice models at the national level. Stalford's contribution has drawn attention to the institutional, procedural and ideological blockages that need to be removed at EU level to support such a development. Lamont, Vandenhole, Savirimuthu and Ferreira provide fresh, critical insights into how elements of child mainstreaming might be applied in the discrete areas of cross-border family law, external development co-operation, regulation of the online industry and employment.
What (more) needs to be done to consolidate the EU's role(s) as a child rights actor?
What all contributions to this volume indicate is that over the last decade there has been an emergent EU presence in addressing international child rights issues. The EU institutions have adopted legal and policy instruments intended to address violations of child rights either in a direct, targeted fashion, or by integrating more sporadic measures or declarations into policy issues more tangential to children. However, what transpires from the chapters of this book is that there is no unified, well-defined and comprehensive EU role as a persuasive child rights actor on the international scene. Indeed, it is not at all apparent that the EU characterises itself as such. On the contrary, the evidence provided in this book suggests that EU's 'actorness' in children's rights varies according to policy sector, division of EU competence and EU internal-external policy spheres, to an extent that the EU is more realistically portrayed as presenting mottled 'responses' to specific children's rights issues. Without doubt certain branches of the EU (such as DG Justice of the Commission) have wholeheartedly embraced the very philosophy of children's rights and sought to firmly embed its principles and methodologies in all new research, legal and policy developments, but this is far from representative of the EU's approach as a whole. Perhaps this is the best we can expect from a polity whose defining raison d'être is economic and political growth as opposed to human rights protection, but one cannot help but interpret it as a wasted opportunity.
The raw materials are certainly in place to allow for the EU's actorness in child rights to take shape and acquire the cohesion, authority, autonomy and recognition (Jupille and Caporaso1998) it has so far lacked. First, the nature and scope of EU intervention in child rights issues is a function of its ever more explicit legal competence, as enshrined in the Treaties. The empirical evidence presented in this book clearly demonstrates that the EU has readily adopted measures bearing on children's issues in those legal and policy sectors where it is mandated by the Treaties to do so. It has done so creatively and opportunistically, generating opportunities for intervention on children's rights issues out of seemingly tenuous legal bases (see, for instance, the issue of de-institutionalisation explored in Chapter 6 by Iusmen). Second, the value and legitimacy of the EU in advancing child rights is also determined by how successfully it can incorporate the child rights instruments of other international polities into its own measures. The efforts made to ground EU measures relating to civil and criminal justice in the Council of Europe's Guidelines on Child Friendly Justice provide one concrete example of the value of such cross-pollination (see further the chapters by Rap and Stalford in this collection).
Third, the effectiveness of the EU as a children's rights actor depends not merely on its willingness to adopt specific children's rights issues within a given campaign, but to nurture and sustain them through thoughtful, integrated research, capacity-building, policy and legal initiatives. The EU's significant investment in this regard in the context of child protection highlights just how expeditious its intervention can be in developing more robust child protection laws and procedures across the Member States, to an extent that would simply not have been achievable through Member States acting alone (see the chapter by Lind-Haldorsson and O'Donnell).
The fourth and perhaps more challenging step that the EU has to take if it is to become a compelling children's rights actor relates not simply to how it regards its own role in protecting children's rights, but in how it regards children's rights more fundamentally. Michael Freeman refers to human rights more generally as much more than simply a framework of laws pertaining to different areas of protection; it is essentially a 'way of thinking' (Freeman 2011). This is particularly relevant to our discussion of children's rights. Even the most explicit, binding measures relating to children's rights, to be truly effective in stimulating positive change in children's lives, have to be driven by what Vandenhole in his chapter refers to as 'true believers' in the value of children's rights, both at EU level and at the national level. This is often referred to in human rights discourse as 'norm socialisation' or 'internalisation' (Risse, Ropp and Sikkink 1999;Goodman and Jinks 2004). According to Goodman and Jinks (2004) the socialisation of legal human rights norms is described as a process of 'acculturation' which entails a 'general process by which actors adopt the beliefs and behavioural patterns of the surrounding culture ' (2004: 621), in this case children's rights culture. In the same vein, Risse, Ropp and Sikkink (1999) highlight the importance of 'institutionalisation' and 'habitualisation' as conducive to norm internalisation. This implies a process of not merely acting in a way that is compliant with specified norms, but, more fundamentally, demands that international actors believe in the validity of the norms that shape their behaviour.
Applying these socialisation frameworks to the EU and children's rights implies that the EU institutions would have to appropriate not only the key provisions and principles underpinning the CRC (such as the best interests of the child, child participation etc.), but also the very philosophy underpinning these provisions -that children are equal citizens, deserving at least equal if not special protection to mitigate the effects of their routine disenfranchisement in virtually all spheres of civil, political, economic, social and cultural life. Conceding to a moral and ideological compulsion to uphold children's rights no matter what is how grand, rhetorical declarations of what 'ought' to be done to give effect to children's rights blossom into tangible, sustained change for the better and into an earnest commitment to holding to account those who fail in such commitments.
But achieving this paradigm shift is by no means a quick process, and it is certainly more easily realised in some areas of children's rights than others. It is much easier, for instance, to convince those in authority of the need to embrace children's rights in the context of the highly vulnerable: no one could reasonably argue with the need for a multi-levelled, multi-agency response to the most extreme violations of children's physical, mental, intellectual and social integrity, such as child trafficking, pornography, acute poverty, lack of education, forced labour or abuse. Even the most hardened, detached EU decision-makers would feel compelled to develop supra-national measures in support of national child protection initiatives in this regard. Indeed, Iusmen's account of the EU's response to de-institutionalisation and Lind-Haldorsson and O'Donnell's presentation of the EU's child protection provisions highlight just how effective the EU can be in responding to the plight of our most vulnerable communities of children. It is rather more challenging to disentangle and uphold children's individual rights in the context of immigration and family reunification, for example, in the face of acute political, economic or public security concerns. And it is more challenging again to respond to children's rights concerns which are veiled in presumptions of privilege and opportunity, as the contributions by Drywood and Savirimuthu illustrate.

Learning from children
The paradigm shift required to further legitimise the EU's role as a children's rights actor also lies in convincing those who wield the budgetary, legal and policy-making authority that they might not know how best to tackle such issues instinctively; that the experiences of children and young people themselves need to inform such responses; that alongside top-down implementation of protective measures, children and young people themselves need to be empowered to directly claim and enforce their rights. There is no particular shame in admitting that the EU is woefully ineffective in engaging children directly in shaping and claiming their rights. Even the most established representatives of our children's rights 'industry', whether they be academics, practitioners or civil society representatives, no matter how well intentioned, commonly fail to reflect a genuinely children's rights-based approach to at least some of their campaign, advocacy and support activities. Sometimes it is because of a lack of resources, time pressures or basic lack of training. Other times, it is due to a widespread and toxic complacency that talking the talk of children's rights is good enough, notwithstanding the fact that what we do might have little bearing on children's experiences either in the short or longer term, and notwithstanding the fact that we might never even speak to children in the course of our day-to-day professional activities, purportedly on their behalf.
And yet we have a wealth of knowledge -generated by a proliferate body of empirical research -at our disposal, attesting to the value of involving children and young people more directly in the development of law and policy-making and in the design of services that affect them (Marshall et al. 2015;Daly 2014;Lundy and McEvoy 2012;Cockburn 2010;Tisdall 2008;Cairns 2006;Crimmens and West 2005;Hill et al. 2004). This body of work tells us time and time again that the insights we gain not just from talking directly to children, but from actively listening to them -providing them with direct channels of redress when things go wrong, offering them a platform to tell things as they are from their own perspectives -yields inimitable insights that can stimulate more suitable and effective changes in provision, and enhance children's sense of engagement and confidence in the democratic process.
Of course, children will rarely be equipped to initiate or respond to an invitation to engage in a dialogue with decision-makers -least of all those at the EU level -without the support of adult mediators. This is where civil society can play a crucial role.
Top down and bottom up -the crucial mediating role of civil society 1 Implementation of the CRC is strongest where there is a powerful and active civil society within the country. This is equally true of the development of children's rights at EU level.
Civil society has thus been at the forefront of the child rights agenda at EU level, and indeed globally, challenging the common understanding of children as objects deserving protection and education, to one of children as subjects and agents of change. Civil society also plays a critical role in holding States to account in implementation of their obligations under the CRC, with the UN Committee reporting process placing considerable importance on the alternative reports and evidence gathered through NGOs and from children themselves.
Nonetheless the extent of children's self-determination and representation remains extremely limited and continues to be mediated by adults. For young people, women, adults with disabilities and many other groups who are oppressed or subordinated, the political slogan "nothing about us without us" is broadly embraced within the decision-and policy-making communities. Indeed, self-organisation and self-representation is recognized as critical for the emancipation and realization of human rights. For children, however, the extent of their direct involvement in advocacy continues to be hampered by (mis)perceptions of children's immaturity, irrationality and incompetence, and there are persuasive arguments to suggest that the CRC, in and of itself, has only served to reinforce traditional power imbalances between adults and children (Cordero Arce 2012: 366).
Perhaps because of the absence of effective children's self-representation, civil society in the children's sector has evolved differently from that representing other social groups. Most countries, for example, will have some level of organized civil society involving people with disabilities, older persons or ethnic or religious minority groups as self-advocates. Sometimes a tension exists between civil society organisations that see themselves as di-rectly representing the 'rights-holders' and those representing service providers. These boundaries are gradually blurring, as service providers increasingly adopt a rights-based approach, shed their traditional, paternalistic approach to support and care, and emphasise the empowerment of, and giving a voice to, service users. In the children's sector, similar tensions existed historically between those driving the child rights agenda, and those perceived as primarily concerned with child welfare. Again, these lines are blurring as more and more service providers integrate a child-rights approach into their daily work, recognizing children as competent partners and giving them a voice in decisions affecting them. Indeed, service providers active in child welfare and protection are often spear-heading children's self-representation and selfadvocacy work 2 , as well as developing innovative ways of involving children and young people directly in the design, implementation and evaluation of services.
Three distinct but overlapping issues come to mind when considering the opportunities and, indeed, threats for civil society in seeking to influence EU efforts to protect and promote children's rights: children's rights advocacy; the role of European civil society networks; and the extent of participatory democracy within the European Union. Advocacy can be defined as the act of engaging with and influencing key policies and decision-makers to achieve social transformation and reform. Whilst most non-governmental organisations working with disadvantaged and at risk children, young people and families are primarily concerned with providing care, support and other services, there is growing recognition of the need to complement service delivery with effective advocacy. However, the existence and characteristics of such agencies representing the interests of children and child rights organisations varies considerably across Europe. The oldest, in Finland (Central Union for Child Welfare), was established in 1937 and involves almost 100 NGOs as well as over 30 municipalities. By contrast, several European countries only have an informal coalition of NGOs that come together during the 5-yearly reporting to the CRC with little or no capacity to represent the participating organisations during the intervening period.
This huge disparity (in terms of organisation and resourcing), in turn, makes it particularly difficult to achieve fluid, representative communication between the EU and some domestic regions concerning, on the one hand, the specific children's rights issues that require redress at the European level and, on the other, the opportunities and investment that the EU makes available for the advancement of children's rights. This has been partially overcome by the emergence of strong transnational advocacy networks representing civil society. Keck and Sikkink define transnational advocacy networks as those involving 'actors working internationally on an issue who are bound together by shared values, a common discourse, and dense exchanges of information' (Keck and Sikkink 1999: 89). Such networks can pool resources, rally support across countries for issues of common concern, and pursue more coordinated campaigns more forcefully than would otherwise be the case.
One particularly prominent and successful advocacy network representing the rights and well-being of children and young people in an EU context is Eurochild, a relatively young network established in 2004. It has evolved and grown steadily since then, now counting 118 full member organisations and over 30 individual associate members, covering 32 European countries. The network's membership is very diverse and includes national and international NGOs, public and statutory bodies, academic and research organisations and umbrella networks. Its principal role is advocacy, reflected in Goal One of its current strategic plan: 'putting the rights and well-being of children and young people at the heart of policy making at EU, national and sub-national levels'. As an activist transnational NGO, the network acts simultaneously within domestic and EU politics. It is clear that children's lives are most directly influenced by policies and investment of governments at national, or increasingly, at sub-national levels.
However, the real added-value of being part of a transnational network comes from when outside pressure can be applied in support of changes advocated by local civil society. This is referred to as a boomerang pattern of influence (Keck and Sikkink 1999: 93). With support from its member organisations, Eurochild (in partnership with other civil society and international organisations) has successfully advocated for greater and more meaningful visibility for children's rights in EU policy, legislation and funding. Three important developments are worth a mention: explicit reference to the promotion of children's rights as an objective of the European Union in the Lisbon Treaty (Article 3(3) TEU); the adoption of the 2011 Communication 'An EU Agenda on the Rights of the Child' (COM/2011/0060 final); and the adoption in February 2013 of the Commission Recommendation 'Investing in Children: Breaking the cycle of disadvantage' as part of the broader Social Investment Package (OJ L 59, 2.3.2013, p. 5-16). And yet, important as they are, in and of themselves, these policy developments will not make a difference to children's lives unless they are used to leverage political progress and investment at national and sub-national levels. This is where Eurochild's work -and that of other similar European advocacy networks -becomes so critical. But international networking is expensive. Eurochild, as is the case with several other civil society networks, receives core funding from the European Commission. In the past, this was through the programme for employment and social solidarity (PROGRESS) and, from January 2014, under the EU programme for Employment and Social Innovation (EaSI). EaSI's primary objective is 'to support Member States efforts in the design and im-plementation of employment and social reforms at European, national as well as regional and local levels by means of policy coordination, the identification, analysis and sharing of best practices'. A total budget of €500m (over 7 years) is allocated to the part of the programme focused on analysis, mutual learning, grants, social innovation and social policy experimentation. Networks are supported by up to €1m per year.
Such core funding, whilst vital to support a network's activities, should not compromise its independence and autonomy. Democratic governance structures and a strong focus on core values are the primary motivators for membership participation and internal network coherence. The EaSI programme objectives are complementary to Eurochild's members' expectations of sharing information, gaining visibility and widening their sphere of influence, and increasing the political space and attention given to children's rights. So far the demands placed on Eurochild by the European Commission have not compromised the network's self-determination and members' ownership. However the relationship is not unproblematic and if the institutional climate becomes less favourable to children's rights, the network's ability to openly challenge and criticize could be limited due to funding cuts. Indeed, this is where the network's engagement with independent, critical academic scholarship becomes all the more crucial (a point to which we return below). This leads us into the related discussion as to the place of civil dialogue and participatory democracy in the overall institutional architecture of the European Union. Article 11 TEU expands the European democratic model from purely a representative democracy to a participatory democracy. As stated in the Civil Society Contact Group study on 'Civil Dialogue: Making it Work Better': …participatory democracy has the following accepted features: …It extends the concept of citizenship beyond the conventional political sphere; it is based on the principle of policymakers' permanent accountability between elections; it acknowledges citizens' right to participate in public life through alternative channels, to tackle the shortcomings of representative democracy; it covers some practices of direct democracy, but also emphasizes the role of civil society organisations as important mediators in debates.' (Fazi and Smith 2008: 15) But can we honestly say that children are part of this vision? Yes, civil society organisations might have developed well-oiled channels of communication with children and young people and be adept at translating these into policy recommendations, but are the channels of communication open at the EU level to enable these recommendations to be communicated? Take, for instance, the 'citizens' initiative', one of the mechanisms specifically highlighted by Article 11 TEU as a tool for achieving participatory democracy. The chapter by Stalford points out just how ineffective this has been as a mechanism for advancing children's rights. The sheer resources (knowledge, administrative assistance, international networks) required to even launch a plausible initiative are simply beyond the reach of most children's rights organisations, such that most instead prefer to invest in alternative forms of lobbying and awareness-raising.

The importance of independent scholarship
It is important not to underestimate the contribution that academic debate makes to the development of children's rights. It is academic scholarship that has stimulated important paradigm shifts in the way that policy-makers, practitioners and civil society address children's rights. The vast literature around children's agency and participation has at least contributed to, if not triggered, a wholesale shift away from exclusively paternalistic, welfare-based assessments of children's interests, and encouraged more direct communication with children as to how their views and experiences might shape decision-making. To accompany this, academics have been at the forefront of developing new, innovative methods to engage directly and meaningfully with children and young people, not just in localised contexts, but on a more ambitious cross-national comparative scale too. This has become increasingly important in responding to the international reach of EU law and policyfinding ways of comparing and contrasting, in qualitative terms, the impact of particular measures on children in a range of different jurisdictional, political, social and socio-economic contexts.
But there are also political reasons why academic engagement in the development of law and policies affecting children is important at all regulatory levels. As stated above, academics are ideally placed to provide objective, critical reflections on the scope and limitations of European intervention. Indeed, it is this very endeavour which defines academic scholarship. The fact that academics are generally funded by and, to a degree, sequestered in the higher educational sector ensures that they can pursue their concerns more freely than their NGO counterparts, without risking biting off the hand that feeds them. They tend to have more resources at their disposal to engage in sustained scrutiny, and are at liberty to test and apply a range of different techniques to promote their campaign, whether that is desk-based erudition or qualitative empirical work involving children and young people.
Of course, some of these strengths are also posited as some of academia's most challenging weaknesses. Academic research can only go so far in advancing children's rights: arguments might look compelling on paper, whilst suffering from distinct deficiency in reality-checking; scholarship on children's rights is all too often advanced within a political vacuum, in blissful (and wilful) ignorance of the profound and perhaps even insurmountable practical implications of implementing some of the recommendations for change that they might advance so passionately.
It is precisely these shortcomings -of a purely academic approach on the one hand, or a campaign driven only by NGO representatives on the otherthat supports calls for more sophisticated and meaningful interdisciplinary collaboration. The European Commission should be applauded for investing significant resources in this process. Funding schemes such as DAPHNE, the Fundamental Rights and Citizenship Programme, Safer Internet and more recently Horizon 2020, continue to support a vast range of projects, from large-scale, longitudinal cross-national evaluations, capacity-building initiatives amongst practitioners, to essential educational and rehabilitative work co-ordinated by front-line services at the grass-roots level. The programmes are increasingly proscriptive about the nature of the collaborations they will fund, and about the ultimate goals they wish to achieve and these correspond more explicitly now with the EU's wider legal and policy plans. So, the outputs which the EU hopes to achieve as far as children are concerned (for example, achieving more child friendly justice; achieving better coordination between domestic child protection regimes) are becoming increasingly clearly defined. What is less clearly defined, however, is the extent to which these envisaged outputs remain relevant and responsive to children and young people's lived experiences, needs and views.
A final word on achieving legitimacy Involvement of civil society actors and advocates in policy processes, and the development of civil dialogue and participatory structures, are crucial factors for enhancing the EU's 'input' legitimacy with respect to children's rights issues. This needs to be accompanied by better 'output'-oriented legitimacy, which would reinforce and ascertain the impact of EU intervention on the provision and experience of child rights measures on the ground. The inputoutput sources of legitimisation have been applied particularly with respect to EU processes (Scharpf 1999) and their legitimacy credentials. According to Scharpf, both input legitimacy (qua citizen participation in EU elections and processes, civil society consultation), and output legitimacy (qua effective policy delivery and performance) are important for the EU. This resonates particularly strongly with the different aspects of children's rights mainstreaming explored in a number of the contributions in this collection (Stalford, Schuurman, Lamont, Savirimuthu and Vandenhole). Some have defined this more generally as 'throughput' legitimacy (Schmidt 2013), rather than the input-output legitimacy distinction. By highlighting the quality of gov-ernance processes, 'throughput' legitimacy captures what occurs inside the 'black box' of EU governance, and therefore it focuses on the efficacy, accountability, transparency, inclusiveness and openness of EU governance as well as interest consultation and intermediation (Schmidt 2013: 4-5). By being more open to processes of engagement and consultation with civil society actors, and therefore facilitating interest intermediation (Kohler-Koch 2007;Smismans 2003), the Commission in particular can gain public approval for its policies or legitimise its actions in policy sectors which are generally perceived to be within the purview of national authorities. This is particularly important in those policy sectors where the EU has a more fragile, perhaps even ambiguous legal mandate, such as children's rights. What is needed is not simply the development of new EU legal or policy measures, or bolder statements of intent by the institutions, but rather more accessible and efficient deployment of existing mechanisms. Each of the chapters in this collection provide a critical and, we hope, constructive evaluation of key, often overlooked legal, policy and procedural tweaks that could be made to achieve a more solid foundation for the layers of new children's rights initiatives that will undoubtedly emerge in the course of the next EU children's rights strategy. We have high hopes that the EU can lead the way in progressing beyond robotic, idiomatic references to children's rights in its instruments and public speeches, and harness its enormous legal, political and economic potential to effect meaningful change in children's lives across the world.