The United Nations Convention on the Rights of the Child (UNCRC)

In 1989, with the adoption of the United Nations Convention on the Rights of the Child (UNCRC), a fundamental value underpinning children’s rights was put forward: the vision that children, defined as any person under the age of 18 years This definition is in line with the provisions of Article 1 of the UNCRC. Article 6 (2) of the Convention on Human Rights and Biomedicine, refers to the term “minor”. For the purposes of this guide, the term “child” is used, unless direct reference is made to provisions using different terminology.,  must be agents in their own lives, in particular, through Article 12, which sets out the right of all children to be heard and taken seriously, in a manner consistent with their evolving capacities:

Article 12: “1. 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."

The right granted by this article later became known as “children’s right to participation”. 

Through its General  Comment  No.12  (2009)  -  The  right  of  the  child  to  be  heard , the Committee on the Rights of the Child provides guidance on how to interpret children’s right to participate in different areas of life. 

Article 12 of the UNCRC, or the right of all children to be heard and taken seriously as a general principle, is linked to the other general principles of the ConventionSuch as the right to non-discrimination (article 2), the right to life, survival and development (article 6) , and, in particular, is interdependent with primary consideration of the best interests of the child (article 3). It should therefore also be considered in the interpretation and implementation of all other rights. 

The UN Convention makes no distinction based on age or other characteristics: all children have the right to receive appropriate information and to express their views, and therefore participate in the decision-making process, taking into account their best interests and what is necessary for their well-being and development. 

 The Oviedo Convention

At the European level, the Council of Europe Convention on Human Rights and Biomedicine (Oviedo Convention, 1997) , lays down the general rule that an intervention in the health field may only be carried out after the person concerned has given free and informed consent to it, based on prior relevant information (article 5). An intervention on a child who cannot consent requires the authorisation of his/her representative, usually a parent, but his/her opinion shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity and, as a general rule, an intervention can only be carried out if it is for the child’s direct benefit (article 6).

The Explanatory Report to the Convention specifies that:

  • situations should take account of the nature and seriousness of the intervention as well as the child's age and ability to understand, and that the child's opinion should increasingly carry more weight in the final decision. It states that in some cases, this could even lead to the conclusion that the consent of a child should be necessary, or at least sufficient for some interventions (para. 45).
  • In some very specific situations and under some very strict conditions in the context of medical research and the removal of regenerative tissue respectively, the rule of direct benefit of the person may be waived.” (Articles 17 and 20 of the Convention (para.44)

 Other legislation 

Additional international legal instruments apply more specifically to specific health situations or to specific groups of children and re-affirm and/or complement the principles laid down by the two conventions cited above.

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In brief:

 Every child has the right to be informed and listened to before any health intervention.

 The weight given to the views of the child increases with age and maturity.

 Decisions should be taken in the best interests of the child.

 Medical research may not be carried out on a child if they explicitly object to it, even when the legal representatives have provided authorisation.

 Genetic testing on a child must in principle be deferred unless the deferral would be detrimental to their health.

 Children with disabilities enjoy this right on an equal basis with other children, and they must be supported to realize that right.