every child’s right to be heard A RESOURCE GUIDE ON THE UN COMMITTEE ON THE RIGHTS OF THE CHILD GENERAL COMMENT NO.12 GERISON LANSDOWN Save the Children is the world’s leading independent children’s rights organisation, with members in 29 countries and operational programmes in more than 120. We fight for children’s rights and deliver lasting improvements to children’s lives worldwide. Published by Save the Children UK on behalf of Save the Children and UNICEF. Save the Children UK 1 St John’s Lane London EC1M 4AR UK +44 (0)20 7012 6400 savethechildren.org.uk First published 2011 © The Save the Children Fund 2011 The Save the Children Fund is a charity registered in England and Wales (213890) and Scotland (SC039570). Registered Company No. 178159 This publication is copyright, but may be reproduced by any method without fee or prior permission for teaching purposes, but not for resale. For copying in any other circumstances, prior written permission must be obtained from the publisher, and a fee may be payable. Cover photo: Children watch a performance by fellow students at a school in El Oro, Ecuador. (Photo: Edward Naranjo and Maruska Bonilla/Save the Children) Typeset by Grasshopper Design Company CONTENTS Foreword vi Acknowledgements viii Abbreviations ix INTRODUCTION 1 Key to boxes and symbols 2 CHAPTER ONE SETTING THE CONTEXT 3 Background 3 Why listening to children is important 5 Participation contributes to personal development 5 Participation leads to better decision-making and outcomes 5 Participation serves to protect children 7 Participation contributes to preparation for civil society development, tolerance and respect for others 9 Participation strengthens accountability 9 Addressing the arguments against children’s participation 12 CHAPTER two LEGAL ANALYSIS OF ARTICLE 12 19 Article 12 para 1 19 Assuring the right to express views 19 Every child capable of forming his or her own views 20 The right to express views freely 22 The right to express views on all matters affecting them 22 The obligation to give due weight in accordance with age and maturity 23 Article 12 para 2 24 The right to be heard in judicial or administrative proceedings 24 The right to be heard directly or through a representative body 24 Representation in a manner consistent with procedural rules of national law 26 CHAPTER THREE ARTICLE 12 AND LINKS WITH OTHER ARTICLES IN THE UNCRC 31 General principles 31 Articles 12 and 2 31 Articles 12 and 3 32 Articles 12 and 6 34 Civil rights and freedoms 35 Articles 12 and 13 35 Articles 12 and 14 35 Articles 12 and 15 35 Articles 12 and 16 36 Articles 12 and 17 36 Evolving capacity and the exercise of rights 36 Articles 12 and 5 36 iii EVERY CHILD’S RIGHT to BE HEARD CHAPTER FOUR OVERARCHING MEASURES FOR IMPLEMENTING ARTICLE 12 41 1. Review and withdraw restrictive declarations and reservations to Article 12 41 2. Introduce legislation 41 3. Establish independent human rights institutions 41 4. Provide training on Article 12 for all relevant professionals 41 5. Ensure appropriate conditions for enabling children to express views 44 6. Combat negative attitudes 46 CHAPTER FIVE OBLIGATIONS RELATING TO JUDICIAL AND ADMINISTRATIVE PROCEEDINGS 51 General steps to be taken in all proceedings 51 Preparation 51 The hearing 52 Assessment of the capacity of the child 55 Feedback on the weight given to the views of the child 57 Complaints, remedies and redress 57 Obligations relating to specific proceedings 63 Divorce and separation 63 Separation from parents and alternative care 65 Adoption and kafalah of Islamic law 67 The child offender 67 Child victims and child witnesses 71 Immigration and asylum proceedings 76 CHAPTER SIX IMPLEMENTING ARTICLE 12 IN DIFFERENT SETTINGS 81 In the family 81 Support and guidance for parents 82 Parental responsibilities and the law 85 In alternative care 85 Legal right to be involved in individual decisions relating to all aspects of the care system 86 Legal right to be consulted in the development of care services 87 Access to information 88 Independent and safe complaints mechanisms 88 Independent inspectorate 88 Independent monitoring body 88 Consultative mechanisms 88 In healthcare 92 Involvement in decision-making 92 Access to confidential medical counselling 94 Consent to treatment 96 Participation in the development of health services 98 iv CONTENTS In education 100 Involvement of children in individual decisions affecting their education 100 Participatory child-centred learning 102 Democratic school environments 102 Participation in education policy 108 National student organisations 108 In play, recreation, sport and cultural activities 109 In the media 112 In the workplace 112 In situations of violence 113 CHAPTER SEVEN IMPLEMENTING ARTICLE 12 IN THE PUBLIC ARENA 119 Within local communities 119 At the national level 128 In conflict and humanitarian reconstruction 139 CHAPTER EIGHT FORMS OF CHILD PARTICIPATION 147 Potential approaches to participation 147 Consultative participation 147 Collaborative participation 148 Child-led participation 150 Basic requirements for effective and ethical participation 152 1. Transparent and informative 152 2. Voluntary 152 3. Respectful 153 4. Relevant 153 5. Facilitated with child-friendly environments and working methods 153 6. Inclusive 154 7. Supported by training 155 8. Safe and sensitive to risk 155 9. Accountable 156 Appendix: Child and youth participation resource guide 158 v FOREWORD Since the adoption of the UN Convention aspect of a child’s life – at home, in school, in on the Rights of the Child in 1989, Article healthcare, in play and leisure, in the media, 12 – the provision that children have a in the courts, in local communities, and in right to express their views and have them local and national policy-making, as well as at taken seriously in accordance with their the international level. age and maturity – has proved one of the most challenging to implement. Although However, although much progress has been understanding of childhood and attitudes made in many countries, with countless towards children differs widely across positive examples of legislation, policy cultures, the experience of the Committee and practice, it remains the case that for on the Rights of the Child has been that too many children across the world, the the reasons for excluding children from right to be heard remains unrealised. participation in matters that affect them are Those from more marginalised groups are remarkably consistent across different parts disproportionately denied the opportunity of the world: children lack competence; they – for example, girls, children with disabilities, lack knowledge and judgement; involving children from indigenous groups, children them in decisions is to place too heavy a with undocumented parents, children burden on them; parents know what is best in conflict with the law, and those living for their children; giving children a voice will in extreme poverty. The Committee is lead to excessive demands, bad behaviour, committed to strengthening the capacity disrespect for elders; participation will of governments to introduce the measures expose children to risk of harm. However, necessary to implement Article 12. From we have learned over the past 20 years its dialogue with governments, it is clear that these concerns are not borne out by that while many are committed to meeting the evidence. Time and again, experience their obligations to promote ways of giving shows that children – even very young children a voice, they lack the knowledge, children – given the time and opportunity, confidence or capacity to achieve that goal. demonstrate not only that they have views, The Committee, therefore, recommends experiences and perspectives to express, this resource guide as a major contribution but that their expression can contribute to achieving change. It elaborates the positively to decisions that affect the General Comment developed by the realisation of their rights and wellbeing. Committee, providing practical help Article 12 is important as a fundamental on implementation through examples right: it is a measure of our human dignity of legislation and policy, guidelines for that we are able to be involved in decisions practitioners, evidence from research, and that affect us, consistent with our levels examples of meaningful participation in of competence. It is also a means through practice. It draws together experiences from which other rights are realised. It is not around the world to enable governments possible to claim rights without a voice. to learn from each other, build on existing Children who are silenced cannot challenge developments, and broaden understanding violence and abuse perpetrated against of the scope and meaning of Article 12. them. The capacity to learn is restricted The evidence it produces demonstrates without the chance to question, challenge that not only is it possible to create and debate. Policy-makers cannot identify environments in which children can make the barriers to fulfilling children’s rights if a significant contribution to their own and they do not hear from children about the others’ lives, but that doing so brings real existence and nature of those barriers. benefits. Sustained action across the fields And the right to be heard applies to every outlined in the publication will serve to vi FOREWORD build environments in which children are society. Strengthening skills, confidence and recognised as active citizens, contributing capacity for democratic