Condensed: A child who is capable of forming his or her own views shall be heard in all matters affecting him or her. The right to be heard is denied, if the child is deprived of his or her right, unless the child would clearly be incapable of forming his or her views and expressing those views freely. It is not sufficient to allow children to express their views; their views should be duly taken in consideration in accordance with the age and maturity of the child. A child should be allowed to express views freely and thus not suffer any pressure, constraint or influence that might prevent or require such expression. States have to ensure that the child receives all necessary information and advice to make a decision in favour of his or her best interests, since only informed decisions can be free. All children involved in judicial and administrative proceedings must be informed in a child-friendly manner about their right to be heard, modalities of doing so and other aspects of the proceedings. . Comprehensive: A child's right to be heard in all matters affecting him or her is provided in Article 12 of the CRC: 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. 2. 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. The right recognised in Article 12 is to be assured in relation to all matters affecting the child. The child should be ‘informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian‘.[1] Since a child is capable of forming his or her own views from a very early age, the CRC Committee has emphasized that Article 12 of the CRC imposes no age limit on the right to be heard and discourages States from introducing age limits in law or practice.[2] There is a presumption that a child is capable of forming his or her own view.[3] By requiring that due weight be given ‘in accordance with age and maturity’, Article 12 makes it clear that age alone cannot determine the significance of a child’s views. Maturity refers to the ability to understand and assess the implications of a particular matter, and must therefore be considered when determining the individual capacity of a child.[4] The right to be heard is denied, if the child is deprived of his or her right, unless the child clearly is incapable of forming his or her views.[5] It is not sufficient to allow children to express their views; their views should be duly taken in consideration.[6] States should ‘avoid tokenistic approaches, which limit children’s expression of views, or which allow children to be heard, but fail to give their views due weight.‘[7] Children should be provided ‘with feedback on how their participation has influenced any outcomes.‘[8] Article 12 includes the right to express views freely. A child should not suffer any pressure, constraint or influence that might prevent such expression or indeed even require it.[9] It also implies that States have to ensure that the child receives all necessary information and advice to make a decision in favour of her or his best interests, since only informed decisions can be free.[10] A child may, for example, refuse to meet a parent even if this violates a contact agreement between the parents. In Plaza v Poland the EctHR noted that ‘it was the child's own approach to contact which was, at least from [when she was 11 years old], decisive in the failure of the contact arrangements’.[11] The Court held that ‘the approach of the domestic courts, which considered that it was of the greatest relevance to the custody and access issues to establish the psychological situation of the child and take her wishes into consideration ... cannot be open to criticism.‘[12] The right to be heard applies also to groups of children, for example a class of school children.[13] According to the CRC Committee 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.’[14] States ‘should carefully listen to children’s views wherever their perspective can enhance the quality of solutions.’[15] Examples of group child participation include situations where children take part in children’s parliaments, school clubs etc The opportunity to be heard in any judicial and administrative proceeding affecting the child applies to all relevant settings without limitation, including children separated from their parents, custody and adoption cases, children in conflict with the law, children victims of physical violence, sexual abuse or other violent crimes, children with disabilities, asylum-seeking and refugee children and children who have been the victims of armed conflict and in emergencies. All children involved in judicial and administrative proceedings must be informed in a child-friendly manner about their right to be heard, modalities of doing so and other aspects of the proceedings.[16] The right to be heard applies both to proceedings which are initiated by the child, as well as to those initiated by others which affect the child. Proceedings must be both accessible and child‑sensitive.[17] States are left with discretion as to how the child's views should be heard, ‘either directly, or through a representative or an appropriate body’, but where procedural rules suggest that this be done through a representative or an appropriate body, the obligation is to transmit the views of the child.[18] Additional references Children’s Rights Centre Including children – Guidelines on ethical practice in fulfilling children’s right to participation (2009) R Hart Children’s participation – From tokenism to citizenship UNICEF Innocenti Essays No 4 (1992) UNICEF Implementation handbook for the Convention on the Rights of the Child (2007)
[1] CRC General Comment 12 para 25. [2] CRC General Comment 7 para 14; General Comment 12 para 21. [3] CRC General Comment 12 para 20. [4] CRC General Comment 12 paras 29-30. [5] UN Manual on Human Rights Reporting (1997) 427. [6] UN Manual on Human Rights Reporting 428. [7] CRC General Comment 12 para 132. [8] CRC General Comment 12 para 134(i). [9] CRC General Comment 12 para 22. See also UN Manual on Human Rights Reporting 427. [10] CRC General Comment 12 para 16. [11] Plaza v Poland application 18830/07 (EctHR 2011) para 86. [12] Plaza v Poland para 86. [13] CRC General Comment 12 para 10. [14] CRC General Comment 12 para 12. [15] CRC General Comment 12 para 27. [16] CRC Day of General Discussion, 15 September 2006, paras 34-35. [17] CRC General Comment 12 paras 32-34. [18] UNICEF Implementaion handbook for the Convention of the Rights of the Child (2007) 157.
A child who is capable of forming his or her own views shall be heard in all matters affecting him or her. The right to be heard is denied, if the child is deprived of his or her right, unless the child would clearly be incapable of forming his or her views and expressing those views freely. It is not sufficient to allow children to express their views; their views should be duly taken in consideration in accordance with the age and maturity of the child. A child should be allowed to express views freely and thus not suffer any pressure, constraint or influence that might prevent or require such expression. States have to ensure that the child receives all necessary information and advice to make a decision in favour of his or her best interests, since only informed decisions can be free. All children involved in judicial and administrative proceedings must be informed in a child-friendly manner about their right to be heard, modalities of doing so and other aspects of the proceedings.
.
Comprehensive:
A child's right to be heard in all matters affecting him or her is provided in Article 12 of the CRC:
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.
2. 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.
The right recognised in Article 12 is to be assured in relation to all matters affecting the child. The child should be ‘informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian‘.[1]
Since a child is capable of forming his or her own views from a very early age, the CRC Committee has emphasized that Article 12 of the CRC imposes no age limit on the right to be heard and discourages States from introducing age limits in law or practice.[2] There is a presumption that a child is capable of forming his or her own view.[3] By requiring that due weight be given ‘in accordance with age and maturity’, Article 12 makes it clear that age alone cannot determine the significance of a child’s views. Maturity refers to the ability to understand and assess the implications of a particular matter, and must therefore be considered when determining the individual capacity of a child.[4] The right to be heard is denied, if the child is deprived of his or her right, unless the child clearly is incapable of forming his or her views.[5] It is not sufficient to allow children to express their views; their views should be duly taken in consideration.[6] States should ‘avoid tokenistic approaches, which limit children’s expression of views, or which allow children to be heard, but fail to give their views due weight.‘[7] Children should be provided ‘with feedback on how their participation has influenced any outcomes.‘[8]
Article 12 includes the right to express views freely. A child should not suffer any pressure, constraint or influence that might prevent such expression or indeed even require it.[9] It also implies that States have to ensure that the child receives all necessary information and advice to make a decision in favour of her or his best interests, since only informed decisions can be free.[10]
A child may, for example, refuse to meet a parent even if this violates a contact agreement between the parents. In Plaza v Poland the EctHR noted that ‘it was the child's own approach to contact which was, at least from [when she was 11 years old], decisive in the failure of the contact arrangements’.[11] The Court held that ‘the approach of the domestic courts, which considered that it was of the greatest relevance to the custody and access issues to establish the psychological situation of the child and take her wishes into consideration ... cannot be open to criticism.‘[12]
The right to be heard applies also to groups of children, for example a class of school children.[13] According to the CRC Committee 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.’[14] States ‘should carefully listen to children’s views wherever their perspective can enhance the quality of solutions.’[15] Examples of group child participation include situations where children take part in children’s parliaments, school clubs etc
The opportunity to be heard in any judicial and administrative proceeding affecting the child applies to all relevant settings without limitation, including children separated from their parents, custody and adoption cases, children in conflict with the law, children victims of physical violence, sexual abuse or other violent crimes, children with disabilities, asylum-seeking and refugee children and children who have been the victims of armed conflict and in emergencies. All children involved in judicial and administrative proceedings must be informed in a child-friendly manner about their right to be heard, modalities of doing so and other aspects of the proceedings.[16] The right to be heard applies both to proceedings which are initiated by the child, as well as to those initiated by others which affect the child. Proceedings must be both accessible and child‑sensitive.[17]
States are left with discretion as to how the child's views should be heard, ‘either directly, or through a representative or an appropriate body’, but where procedural rules suggest that this be done through a representative or an appropriate body, the obligation is to transmit the views of the child.[18]
Additional references
Children’s Rights Centre Including children – Guidelines on ethical practice in fulfilling children’s right to participation (2009)
R Hart Children’s participation – From tokenism to citizenship UNICEF Innocenti Essays No 4 (1992)
UNICEF Implementation handbook for the Convention on the Rights of the Child (2007)
[1] CRC General Comment 12 para 25.
[2] CRC General Comment 7 para 14; General Comment 12 para 21.
[3] CRC General Comment 12 para 20.
[4] CRC General Comment 12 paras 29-30.
[5] UN Manual on Human Rights Reporting (1997) 427.
[6] UN Manual on Human Rights Reporting 428.
[7] CRC General Comment 12 para 132.
[8] CRC General Comment 12 para 134(i).
[9] CRC General Comment 12 para 22. See also UN Manual on Human Rights Reporting 427.
[10] CRC General Comment 12 para 16.
[11] Plaza v Poland application 18830/07 (EctHR 2011) para 86.
[12] Plaza v Poland para 86.
[13] CRC General Comment 12 para 10.
[14] CRC General Comment 12 para 12.
[15] CRC General Comment 12 para 27.
[16] CRC Day of General Discussion, 15 September 2006, paras 34-35.
[17] CRC General Comment 12 paras 32-34.
[18] UNICEF Implementaion handbook for the Convention of the Rights of the Child (2007) 157.