Article 12 of the Convention on the Rights of the Child and Children’s Participatory Rights in Canada

II. Article 12 of the Convention on the Rights of the Child

Article 12 of the CRC provides:

  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.

Interpreting Article 12

In 2009, the Committee on the Rights of the Child published General Comment No. 12: The right of the child to be heard, which provides guidance on the interpretation of Article 12.

Article 12 is written in such a way as to place as few restrictions on children’s participation as possible. Article 12(1), for example, does not limit the matters on which children should be consulted. Similarly, while the Article only guarantees the right to be heard to a child “capable of forming his or her views,” capacity is to be interpreted broadly: the Committee suggests that states presume a child has capacity to form views. Furthermore, capacity is not determined by age, and the Committee discourages states from introducing age limits for children’s participation. Capacity does not mean a child must have comprehensive knowledge of all aspects of the matter at issue; instead, sufficient understanding of the matter is enough.

The Committee argues that Article 12 also places obligations on states to ensure that a child’s right to participate is realized. It is not enough to allow children to share their views. States must support children who have difficulty making their views heard, such as children with disabilities and minority children, as well as protect children who express their views, for example child victims who testify in criminal proceedings. The environment in which children express their views matters: venues that are not accessible or child-friendly prevent children’s views from being properly heard. Finally, to properly exercise their right, children must be informed of the context in which their views are heard, including information about the nature of proceedings and any potential decisions that may result.

Article 12 requires that children’s views be heard and considered. The significance accorded to a child’s views depends on his or her age and maturity. For the purposes of Article 12, maturity refers to the capacity of a child to express views on issues in a reasonable and independent matter. Maturity must also be assessed according to the matter at issue: the greater the impact a decision will have on a child’s life, the more relevant the assessment of maturity becomes.

Article 12(2) directs that children be given the opportunity to be heard in “any” proceedings affecting them. The Committee has provided a non-exhaustive list of judicial proceedings where children’s views might be heard, including those respecting “separation of parents, custody, care and adoption, children in conflict with the law, child victims of physical or psychological violence, sexual abuse or other crimes, health care, social security, unaccompanied children, asylum-seeking and refugee children, and victims of armed conflict and other emergencies.” Footnote 6 Examples of administrative proceedings where the views of children could be taken into account include “decisions about children’s education, health, environment, living conditions, or protection.” Footnote 7 However, the Committee has indicated that the “main issues” that require a child to be heard are divorce and separation, separation from parents and alternative care, adoption, child offenders, and the child victim and child witness. The Committee has also noted that children’s participation rights extend to mediation and alternative dispute resolution.

Article 12(2) provides that children may be heard directly or indirectly through a representative. The Committee recommends that wherever possible, children be given the opportunity to be heard directly. Where a child is heard indirectly, there must be no conflict of interest on the part of the child’s representative.

Finally, it is important to recognize that Article 12 confers a right to express views, not an obligation to do so. Children therefore have a right not to exercise their right to be heard. They should not be forced to express views in matters affecting them.

Relationship Between Article 12 and Article 3

General Comment No. 12 of the United Nations Committee on the Rights of the Child also clarifies how the rights in Article 12 relate to other rights in the CRC, including those contained in Article 3. Article 3 provides, in part:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Some commentators have suggested that Article 3 can be interpreted in such a way as to trump the rights contained in Article 12. Specifically, it has been argued that hearing the views of children may be contrary to their best interests, as it may draw them into a dispute involving their parents or other caregivers, and accordingly their views and wishes should not be solicited. Footnote 8 The Committee rejects this approach and denies that there is tension between the two Articles. It interprets Articles 12 and 3 as mutually reinforcing: the best interests of the child will be promoted where the views of the child are heard and considered. Conversely, denying a child the opportunity to be heard would seem to violate Article 3.

While there are legitimate concerns about how children are involved in legal proceedings, and children should never be pressured to express their views or preferences, there is considerable research that allowing children to share their perspectives promotes their welfare, as well as it being necessary to protect their rights.  Hearing from children often provides judges, mediators, lawyers, and parents with vitally important information about their best interests.  Research suggests that children generally have better outcomes if they feel that they have a “voice” in the family dispute resolution process. Footnote 9