The principle of inclusion and participation is based on the right to respect the views of the child implemented by Article 12 of the Convention on the Rights of the Child (The Convention or CRC). It uniquely embodies the shift in the perception of a child from that of a passive object of law and in sole need of protection to an active participant in the process of decision-making as intended by the Convention (Tobin, 2019).
History
In previous children’s rights instruments, such as the 1924 and the 1959 Declaration on the Rights of the Child, the focus of its provision was the child’s welfare. The intention of the drafting parties to establish the child as an independent and active right holder (Office of the High Commissioner for Human Rights, 2007) included the focus on the evolving autonomy of the child (Committee on the Rights of the Child, 2009). This object and purpose of the Convention reflects that children are perceived as “very active, constructive thinkers and learners” (Flavell, 1992).
Terms of 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.” (Article 12 (1) CRC)
“Shall assure”
This right imposes a strict obligation on state parties which grants them no discretion in the application and implementation of the right. Therefore, states are obliged to actively realize the child’s right to express her or his views freely and to give due weight to those views.
“Capable of forming his or her own views”
This term is based on the application of the presumption that a child has the capacity to form her or his own views and does not impose an age limit on the exercise of this right. The assessment of such capability obliges state parties to withdraw the adult-centric perspective and apply a child perspective which requires the understanding of child-specific forms of expressing views (Committee on the Rights of the Child, 2009). The capability to form a view does not require a child to have comprehensive knowledge of the issue at hand, it only requires the child to understand and be aware that she or he is expressing her or his views on a particular issue (Tobin, 2019).
“The right to express those views freely”
This aspect of Article 12 and the right to be heard include two aspects. The first part is based on the term “freely” which includes that the right does not impose an obligation for the child to express their view, but grants her or him the right to choose to express her or his views. Therefore, a child should never be under pressure or any influence to express the views (Committee on the Rights of the Child, 2009).
Secondly, the principle of effectiveness underlying in the CRC requires proactive measures by the state parties to provide age-appropriate and safe circumstances for the child to express her or his views taking the child’s individual, social and cultural background into account. These age-appropriate and safe circumstances also include the possibility to express views through alternative, child-specific means and ways such as art, dance, poetry, pictures, painting, photos, other visual presentations, email, sign language, gestures, emotional displays and silence (Tobin, 2019).
“In all matters affecting the child”
The term “all matters” extends the scope of Article 12 CRC to include issues that are not specifically expressed by the Convention. This broad formulation reflects the intention of the drafters without creating a general political mandate (Tobin, 2019). The inclusion of “affecting” restricts the scope of Article 12 by requiring a link between the issue at stake and a child whether it is a direct or indirect link. Therefore, “affecting” includes matters that do not exclusively concern children or a child.
This wide interpretation aims to include children in the social, judicial and administrative processes, decisions, actions and omissions to enhance the quality of solutions (Committee on the Right of the Child, 2009). The Committee on the Rights of the Child (CRC Committee) in its General Comment No. 12 provided for a non-exhaustive list of situations that typically affect a child such as in the family, in alternative care, in health care, in education and school, in play, recreation, sports, cultural activities, in the workplace, in situation of violence, in the development of prevention strategies, in immigration and asylum proceedings, in emergency situations and in national and international settings (Committee on the Right of the Child, 2009).
“Given due weight in accordance with the age and maturity of the child”
This element of Article 12 CRC guarantees that a child is not only granted the opportunity to express his or her views and to be heard, but that the expressed view is also seriously considered. A serious consideration requires to examine both the capacity of the child and the impact of the matter on the child (Committee on the Rights of the Child, 2009).
Firstly, the evolving capacity of the child requires an individual assessment on a case-by-case basis of the child´s age and the maturity. The age – biological age of the child – cannot be the sole determining factor as it only indicates the capacity of the child (Committee on the Rights of the Child, 2009). Maturity refers to the ability to understand and assess the implications of a matter at stake and to express their views. Contrary to the age of the child, the aforementioned ability is influenced by a child´s own life experience, level of education, intelligence, empathy and information available to the child (Tobin, 2019).
Another determining factor for the weight given to the views of the child is the level of impact of the matter on a child. In the case of a greater impact of a specific matter on an individual child, the weight given to the consideration of the views expressed by the child has to be increased. Similarly, the burden of justifying that a decision is consistent with the child´s view will be higher in cases of a great impact on a child (Tobin, 2019).
Written by Alexander Weihrauch
Last updated on 2 March 2021
Bibliography:
Flavell, John (1992), Cognitive Development: Past Present and Future; published in Lee, Kang (2000), Childhood Cognitive Development: The Essential Readings; in: Tobin, John (28 March 2019), The UN Convention on the Rights of the Child: A Commentary”, Oxford Commentaries on International Law, Chapter 13, Oxford Scholarly Authorities on International Law (OSAIL).
1989 UN Convention on the Rights of the Child
Office of the High Commissioner on Human Rights (2007), Legislative History of the Convention on the Rights of the Child (‘Legislative History’), p. 365.
