Children and International Human Rights Law

The Right of the Child to be Heard

Aisling Parkes

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135085261
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The United Nations Convention on the Rights of the Child 1989 is one of the most highly ratified human rights treaties in the world, with 192 states currently signed up to it. Article Twelve is fundamental to the Convention and states that all children capable of forming views have the right to express those views, and recognises that all children have the right to be heard in any judicial and administrative proceedings affecting them.

This book explores the historical and theoretical background to Article Twelve, and examines the various models of participation which have been created to facilitate a better understanding of this provision. Aisling Parkes analyzes the extent to which Article Twelve has been implemented under international law, and in domestic law, as well as setting-out recommendations for the most effective ways of implementing Article Twelve in all areas of children's lives.

1 Article 12 and child participation

Over the past decade or so, the idea that children are entitled to be heard in all matters affecting them has become central to the international debate on children's rights. Indeed, the recognition of this right of the child has gone from strength to strength, slowly evolving from being an alien concept to becoming a legal norm firmly entrenched at international level as well as in the domestic legal systems of some countries across the world.

At international level, the United Nations Convention on the Rights of the Child 1989 (CRC) was adopted by the UN General Assembly on 20 November 1989. This marked the beginning of a universal rights-based approach towards the child, an approach which sees the child as a subject of rights rather than an object of adult protection. Arguably the most important of the CRC's many provisions is Article 12, which provides for the right of the child to be heard.¹ Article 12 lies at the core of the convention and provides a means through which children can exercise all of the other rights contained therein. The substance of this unique and innovative convention provision as well as its implementation, form the principal focus of this book. This chapter serves as an introduction to Article 12, setting out the provisions of the CRC, Article 12 and the role of the UN Committee on the Rights of the Child, the function of which is to monitor the convention's implementation. Moreover, it examines the idea of child participation as a concept, its importance and the various models of child participation that have been developed in order to determine what constitutes effective participation.

The UN Convention on the Rights of the Child 1989

It has been acknowledged that the CRC ‘… reflects a sea change in the recognition of children as individual human beings and holders of human rights’² and, thus, has provided ‘… a new vision of children’.³ Moreover, it forms the foundation of a ‘new moral ethos for children’. It is an international instrument which is wholly dedicated to, and promotes respect for the protection of children's rights and represents the starting point for the development of children in circumstances of freedom, dignity and justice.⁴ The CRC was adopted following 10 years of continuous negotiations of a working group of the Commission on Human Rights. In effect, it is the product of political compromise in respect of universally recognised human rights between legal systems and cultural traditions that differ in many respects.⁵ Van Bueren acknowledges that the CRC promotes an ethos of both cultural diversity as well as universalism.⁶ Thus, as a result, it is now the most highly ratified human rights treaty in the world with 193 states parties … with the United States isolated as the principal dissenter from its widely accepted standards on children's rights.⁷

The CRC contains 54 provisions, 41 of which enshrine the civil and political rights as well as the economic, social and cultural rights of the child. Indeed, it is the wide remit and comprehensive nature of the convention's provisions which has received particular praise.⁸ Article 1 recognises that for the purposes of the convention: ‘…a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier’. Thus, states parties are legally obliged to ensure that the CRC rights of all children under the age of 18 years are protected. The other principles and provisions of the CRC have been traditionally grouped according to the ‘three ps’ which are protection, provision and participation.⁹ The protection provisions of the CRC include the protection of children separated from their parents (Article 9), the right to privacy (Article 16) protection from violence (Article 19), the protection of children deprived of their family environment (Article 20), protection from child labour (Article 32), sexual and other forms of exploitation (Articles 34 and 36), protection from torture, degrading treatment and deprivation of liberty (Article 37) and protection of children involved in armed conflict (Article 38). The provision rights include the child's right to health and health services (Article 24), the right to benefit from social security (Article 26), the right to an adequate standard of living (Article 27), the right to education (Article 28) and leisure, play and culture (Article 31). Finally, the participatory provisions of the CRC include most importantly, the principle of respect for the views of the child (Article 12), the right to freedom of expression (Article 13), the right to freedom of thought, conscience and religion (Article 14), the right to freedom of association and peaceful assembly (Article 15) and the right of access to information (Article 17).

The remaining provisions of the CRC are concerned with the general measures of implementation (Article 4), making the convention widely known (Article 42), and the monitoring of the convention through the committee (Article 43)¹⁰ and the State Party Reporting Process (Article 44).

The general principles of the CRC

In 1991, the committee identified four general principles which serve to guide the implementation of the entire convention.¹¹ These are: the principle of non-discrimination under Article 2; the best interests principle under Article 3; the right of the child to life, survival and development under Article 6; and Article 12, which provides for the principle of respect for the views of the child. It has been acknowledged that the general guiding principles are ‘… underlying values that should guide the way each individual right is ensured and respected’.¹² Thus, they play a predominant role in the effective realisation of the other rights of the child which are enshrined under the CRC. Since the adoption of the CRC, the committee, which has responsibility for monitoring implementation and enforcement, has highlighted the important role Article 12 plays as a general principle of the CRC, particularly in relation to the implementation of the other rights contained therein.

Article 12 provides:

States parties shall assure to the child who is capable of forming his or her 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.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

According to Santos Pais, Article 12 refers to the manner in which the realisation of children's rights must be promoted which is with children. Furthermore, because it is a fundamental right of the child, the right itself demands a clear commitment and effective action to become a reality in everyday life.¹³

Article 12(1) provides for the general right of all children capable of forming views to be afforded the opportunity to be heard in all matters affecting them, with due weight being given to those expressed views in accordance with their age and maturity. Article 12(2), while reinforcing Article 12(1), is more specific as it provides for the right of the child to be heard directly or indirectly through a representative in all administrative and judicial proceedings affecting the child. Since Article 12 is a right to which no country has made any express reservation, it must be implemented in all states parties, regardless of culture or traditions. Thus, all 193 states parties are legally bound to implement the child's right to participate in all matters affecting him or her.

Reinforcing the need to respect the views of children

While other international instruments have reinforced the CRC in giving recognition to the principle of respect for the views of the child this has mostly been done procedurally rather than substantially. For example, at international level, Article 13 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction¹⁴ and Article 4(d) of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption 1993 refer to the need to respect the views of the child.¹⁵ Significantly, however, section 7(3) of the United Nations Convention on the Rights of Persons with Disabilities 2006 specifically provides that:

States Parties shall ensure that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and ageappropriate assistance to realize that right.

This provision mirrors the substantive provisions under Article 12(1), thus reinforcing the obligation on states parties to ensure that all children with disabilities have the same access to the right to express views as children without disabilities.¹⁶

The recognition and protection afforded to the child's right to be heard at the international level has also been reinforced to a large extent at regional level, particularly in Africa and Europe. For example, Article 4.2 of the African Charter on the Rights and Welfare of the Child 1990 provides ‘for the views of the child to be heard either directly or through an impartial representative … and those views shall be taken into consideration by the relevant authority’.¹⁷ The latter provision replicates the procedural protection afforded to children involved in judicial and administrative proceedings as recognised under Article 12(2). The Council of Europe¹⁸ adopted the European Convention on the Exercise of Children's Rights (ECECR) on 25 January 1996. While this convention is restricted to family proceedings before a judicial authority it nonetheless recognises the child's right to be heard directly or indirectly in such proceedings.¹⁹ More recently, under Article 5(1)(b) of the European Convention on the Adoption of Children (Revised) 2008 an adoption order shall not be granted without the:

… consent of the child considered by law as having sufficient understanding; a child shall be considered as having sufficient understanding on attaining an age which shall be prescribed by law and shall not be more than 14 years.

Furthermore, Article 6 provides that in cases where the child's consent is not required under Article 5, the child shall be consulted and his or her views shall be taken into consideration in accordance with his or her age and maturity. However, this provision is qualified by the possibility that such consultation may not be in the best interests of the child and so should only be conducted insofar as is possible.

Following an examination of these two provisions, it seems that together they operate like a rebuttable presumption which is an approach discussed in more detail in Chapter 5 below. It is presumed at the age of 14 years old that these children are mature enough to consent to a decision being made about them concerning adoption. However, before reaching 14 years old they should have the right to be consulted, their views being considered in accordance with their age and maturity.

The consultative process is not, however, analogous to providing children with the opportunity to express their views in accordance with their age and maturity and thus fails to satisfy the requirements of ...

Table of contents

• Cover
• Half Title
• Routledge Research in Human Rights Law
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Foreword
• Acknowledgements
• List of abbreviations
• Introduction
• 1 Article 12 and child participation
• 2 The nature and scope of Article 12 of the CRC
• 3 Implementing Article 12 in practice
• 4 Child participation in family decision-making
• 5 The voice of the child in family law proceedings
• 6 Listening to children in school
• 7 Listening to children in conflict with the law
• 8 Children's voices in public decision-making
• 9 National human rights institutions and Article 12 CRC
• 10 Interpretational enforcement of the CRC: monitoring the implementation of Article 12
• 11 Conclusion
• Notes
• Bibliography
• Index