Building a Europe for and with children

Lucy Smith,
University of Oslo

UN General Comment 12 (2009) The Right of the Child to be heard

I congratulate the Council of Europe for arranging this important Round Table discussion on participation of children, and I am glad for this opportunity to speak about the UN Committee’s new General comment on article 12, my favourite article.

Article 12 is one of the most important articles in the UN convention on the rights of the child. It is a legally complicated article, and there are different opinions about the interpretation. It was thus a challenging task to produce the General comment, with many people involved, heated discussions, and several drafts presented before the adoption in June this year.

It should be emphasized that the General comments of the Committee are first and foremost an interpretation of the legal obligations stipulated in the article. However, this Comment, as all others, also contains recommendations from the Committee that goes beyond the legal requirements. The overall intention of the comment is to support States parties in the effective implementation of article 12, as stated in paragraph 8 in the comment. The Comment seeks to strengthen the understanding of article 12 and its implications for all. It further elaborates on the best legislation, policies and practice necessary to achieve full implementation of article 12, and proposes basic requirements for appropriate ways to give due weight to children’s views.

The structure of the General Comment is – in short – Chapter I, an introduction chapter, Chapter II, the objectives of the article, and Chapter III, with the heading The right to be heard: a right for the individual child, and a right for groups of children. This chapter contains the rest of the General comment, and makes up more than 3/ 4th of it. It has several sections and subsections, and the most relevant for to day’s programme could be parts of Section A with the legal analysis, section B about the links with other provisions of the Convention, and section C that deals with the implementation of the convention in 11 different settings.

The structure is may be not immediately easy to follow. I believe, however, that the Comment will be of great help for the State parties, NGOs and others in implementing the article. It gives the Committee’s interpretation of wordings that has caused much discussions, it explains the obligations of the State parties according to the article, and gives important guidelines for an effective and ethical implementation of the article.

The largest part of the Comment is about the right of the individual child to be heard, and thus not immediately relevant for the discussions to day. This General comment is long, with 134 paragraphs, and it is not possible for me to go through all the paragraphs in 30 minutes. I will therefore try to pick the themes that I believe will be of greatest interest for this audience.

Now some general remarks about article 12.
The right of the child to be heard and taken seriously constitutes one of the fundamental values of the Convention. The article has been met with resistance and reservations from some States parties that find these rights being against the traditions and culture of their country. For many others, especially NGOs and UNICEF, but also for many State parties, the article has been met with enthusiasm, and as the legal and moral basis for a general right of children to take part in society. This is the background for the use of the term “participation”. The round-table to day illustrates how child participation in society has become an important part of the child policy of the Council of Europe and several European states.

The word “participation” is commented on in the General comment. Although the word does not appear in the text of article 12, it has been widely used in connection with article 12, sometimes also used as encompassing all the civil rights following from article 12 to 16. According to the General Comment, the use of the term has evolved, and is now widely used to describe ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect.

The right that article12 is about, is according to the wording “the right to express .... views freely”, but the General comment often describes this as the right to be heard, which illustrates in a better way that this right presupposes that the child is expressly given the opportunity to give his or her views.

I will first look at some points of the Comment’s legal analysis of the article.
Let me start with the discussion on who are the subject of the rights according to article 12 and the meaning of the word “the child”. One of the most controversial issues regarding this article, is whether the subject of the right accorded in the article, is the individual child only, or also a definite group of children, or even children in general, that is children as a social group. Looking at the drafting history and the wording, it seems reasonably clear that the intention of the drafters was first and foremost to regulate the right of the individual child to freely express their opinion and not to give a legal right for children in general to be heard in all matters affecting them.

The General Comment is not crystal clear in its interpretation of the article on this question. But it seems that according to the General comment, in cases when it is not possible to assess the capability of a group of children to present their own views, the State party is not under a strict legal obligation to listen to these children. In paragraph 9 of the Comment it is stated that the distinction made between the right of the individual child, and the right of a group of children (e.g. class of schoolchildren, the children in a neighbourhood, children with disabilities, or girls). is a relevant distinction. This is because the Convention stipulates that the States must assure the rights of the child to be heard according to the age and maturity of the child. In paragraph 10, it is stated that the conditions of age and maturity can be assessed when an individual child is heard, and also when a group of children, for example a school class, chooses to express its views, but this is made more difficult when children express themselves collectively. And from this should follow that there is no strict legal obligation in those cases. However, the Committee recommends strongly that the State parties exert all efforts to listen to or seek the views of those children speaking collectively. And this is a recurrent theme all through the comment.

In connection with discussion of the link to article 3, the Committee states in paragraph 73: “ I f the best interest of large numbers of children are at stake, heads of institutions, authorities or government bodies should also provide opportunities to hear the concerned children from such undefined groups, and give their views due weight when they plan actions, including legislative decisions, which directly or indirectly affect children.” Here the Committee is actually saying that children should participate in the consultation process regarding legislation that directly or indirectly affects them.

For the Courts it will be important to draw the line between legal obligations and merely recommendations from the Committee. For the Committee, however, it will not be of great importance whether there is a strict legal obligation or not to hear children speaking as a social group. The Committee will in any case recommend and encourage as much as possible the State party to listen to children if their views are expressed freely. If the children themselves choose to give their views on an issue on their own initiative, which they often do and we will hear about to day, there can be no sensible arguments against the Government, or other decision makers, taking these views into consideration. As the Comment states in paragraph 11:“The views expressed by children may add relevant perspectives and experience, and should be considered in decision-making, policymaking and preparation of laws and/or measures as well as their evaluation.”

The question to which extent there is a legal obligation to hear children in general, is connected to the interpretation of the expression “all matters affecting the child” which represents another qualification of right to expression. Also this qualification must be respected and understood broadly, according to paragraph 23 in the Comment. The Comment explains that while the Committee supports a broad definition of the word “matters”, it recognizes the clause “affecting the child” which was added in order to clarify that no political mandate was intended. This must in my opinion be interpreted as saying that there is no legal obligation for the state to assure children the right to express themselves on political issues in general. But the Comment emphasises that practice demonstrates that a wide interpretation of matters affecting the child and children helps to include children in the social processes of their community and society. And the recommendation expressed in the last sentence in paragraph 27 sums up in a clear way the view of the Committee: State parties should carefully listen to children’s views wherever their perspective can enhance the quality of solutions.

I will now take up some other points from the literal analysis in section A. Let us start with the wording that the State “shall assure”, paragraph 19. This means that the State parties have a strict legal obligation to undertake all necessary measures to implement this right for all children. At the same time it should be mentioned that the Comment warns against tokenish approaches, for example children parliaments where the children are handpicked by the authorities, or censoring the children’s statements. (paragraph 132).

The right is only for children that are capable of forming his or her views. We have already seen that this means that the right to be heard according to a strict interpretation is limited to cases where the assessment is possible, which it will not be if the group is not clearly defined. However, according to the comment this should otherwise not be seen as a limitation, but more as an obligation to assess the capacity of the child to form an autonomous opinion.

The Committee emphasises that Article 12 poses no age limitation on the right of the child to express views, and discourages State parties from introducing age limits which would restrict the child’s rights to be heard. I agree with this, but since I now have the chance, I would like to add a point that I never managed to get into the Comment, regarding especially paragraph 2 of article 12, in judicial and administrative proceedings. It could be useful to have legislation that gives a child able to form its own point of view a general right to be heard irrespective of age, but to add that when the child reaches the certain age, for example 7, it shall always be heard before a decision is made, without any assessment of maturity. This will secure the right to be heard irrespective of the views of the judge. Judges can be quite conservative! I also recently heard Jaap Doek give a passionate defence of age limits in court procedures and other cases where it is difficult to assess the maturity of the child in advance. He asked rhetorically: Should the judge make a telephone call to the parents to ask how mature the child is, or should she arrange a maturity test?

“The right to express those views freely” is about the right to choose whether to express the views or not, to do it without pressure of any kind, and without being influenced unduly or manipulated. In paragraph 23 is emphasised that the State parties must ensure conditions for expressing views in a way that the child feels respected and secure when freely expressing her or his opinion.

The views of the child “being given due weight in accordance with age and maturity of the child”, what does this imply?

First of all, that it is not enough to listen to this child, the views must be carefully considered. Maturity refers to ability to understand and assess the implications of a particular matter, according to paragraph 30, where it is also stated that in context of article 12, maturity is the capacity of a child to express his or her views in a reasonable and independent manner.

In this connection a few words about article 5, according to which the State parties shall respect the rights and duties of the parents to provide the children with appropriate direction and guidance when exercising their rights according to the convention. This shall be provided in a manner consistent with the evolving capacities of the child. According to paragraph 84 it follows from this that the more the child knows, understands and has experienced, the more the parents have to transform direction and guidance into reminders and advice, and later to an exchange on an equal footing. As children acquire capacities, they are entitled to an increasing level of responsibility for decisions affecting them.

The second paragraph of article 12 about the right to be heard in any judicial and administrative proceedings affecting the child, is of great legal importance. If the child has not been given a chance to be heard, this may lead to the decision being overturned. The specific obligations with regard to judicial and administrative proceedings following from article 12, 2 are explained in paragraphs 50 to 64. These paragraphs are quite straightforward, and as I have limited time and these provisions probably not will be of central interest for this audience, I will pass them over.

Under subsection B about the links between article 12 and other articles, I will highlight article 13 and article 17. Article 13 about freedom of expression is often confused with article 12. Paragraph 81 explains that although the two articles are strongly linked, they elaborate different rights. Freedom of expression is the right to hold and express opinions and seek and receive information through media. This article is moulded upon article 19 in the UN Covenant on civil and political rights. It imposes on the State parties a negative obligation, to refrain from interfering with these rights, and the positive obligation to protect the access to media and other means of communication. Article 12 , however, relates to the right for a child to express his or her views in all matters that affect the child, and the obligation of the State parties to introduce the necessary legal framework and mechanisms to ensure this right, and also give due weight to those views. The freedom of expression in article 17 requires no such positive action or response from State parties. However, the Comment points that creating an environment on respect for the views of the child consistent with article 12, contributes towards building children’s capacities their right to freedom of expression.

Article 17 is extremely important also in connection with article 12. This right to information is to a large degree a prerequisite for the effective realisation of the right to express views. Take for example health issues, the children must be provided with information in formats appropriate for their age, about proposed treatments, their effects and outcomes. Only then they will be able to contribute to the planning and programming of services for their health and development.

The Committee also reminds States parties in paragraph 83 of the importance of media both as means to promote awareness of the rights of children to express their views, and to provide opportunities for public expressions of such views. It urges various forms of the media to include children in the development of programmes, and also to create opportunities for children to develop and lead media initiatives on their rights.

I now go to section C about the implementation of the right to be heard in different settings and situations. I consider this to be an important part of the Comment and very helpful for people and organisations having contact with children in the different settings. Because of time restrictions, I will just highlight some points that I find of special interest.

This section starts in the family. This is how it should be. Children’s primary arena is the home, and a family “where children can freely express their views and be taken seriously from the earliest ages, provides an important model, and is preparation for the child to exercise the right to be heard in the wider society.” (Paragraph 90) There have been strong voices saying that the family is outside the scope of the Convention. Both the wording of article 12 and 5, and common sense refute this. The Convention recognizes the rights and responsibilities of parents to provide direction and guidance to the children, but in a manner consistent with the evolving capacities of the child. The Comment states that the State parties should encourage parents to listen to children and give due weight to their views in matters that concern them. The committee also recommends that State parties promote parent educational programmes, and indicates what they need to address.

The right of the child to be heard in alternative care (no.2) is fundamental, both as regards matters of placement, the regulations of care in foster homes, and in their daily lives. This right must be founded on national legislation, and there must also be a competent monitoring institution. There should also be a mechanism, for example a representative council of the children, with a mandate to participate in the development and implementation of the policy and any rules of the institution.

In health care (3) the child’s right to take part in decision-making is especially important because of the very personal character of the decisions. First of all, the children should be included in the decision-making processes from an early age. In this the child must be provided with all the appropriate information. The child should futher have the opportunity to confidential medical counselling and advice without parental consent, irrespective of age, where this is needed for the child’s wellbeing or safety (paragraph 101). In paragraph 102 the Committee recommends the State parties to consider the introduction of legislation that introduces a fixed age at which the right to consent transfers to the child. Personally I would have preferred a special medical age of majority for example at 16 years as a main rule, as in many European countries.

Respect for the right of the child to be heard in education (no 4) is fundamental to the right of education, and the Committee recommends different types of action to build opportunities for children to express their views, and for the views to be given due weight. I will mention a few points: class councils, student councils and student representation on school boards should be obligatory and enshrined in legislation. Giving children’s views weight is particularly important in the elimination of discrimination, prevention of bullying and disciplinary measures. In all individual choices in education, the views of the child must be assured. The Committee also recommends that the State parties consult children at the local and national level on all aspects of educational policy, among them curricula, teaching methods and child-protection systems.

I will end by pointing to paragraph 130, where the Committee welcomes the significant contributions by UNICEF and NGOs in promoting awareness-raising of children’s rights to be heard and their participation in all domains of their lives. The Committee also encourages the NGOs to further promote child participation in all matters affecting them, in all levels, and to facilitate exchanges of best practices. Net-working is also encouraged. In short, just the activities that this day is about. I hope this will be an inspiration for you all!

Thank you.