Rights & Law
A Child in Court: The Right to Be Heard, and What It Requires of Adults
Article 12 of the UN Convention on the Rights of the Child (UNCRC) provides that a child who is capable of forming their own views has the right to express those views freely in all matters affecting them, and that those views must be given due weight in accordance with the child’s age and maturity. This recognition, adopted by the UN General Assembly in 1989, is not a courtesy.
What this piece covers
A Legal Right, Not a Courtesy
The UN Committee on the Rights of the Child, in General Comment No. 12 (2009) emphasises that Article 12 establishes a general principle that must be considered in the implementation of all other rights in the Convention. The Canadian Department of Justice notes it sets out a specific right of the child to be heard directly or through a representative in any judicial or administrative proceeding affecting the child. The UK's Children and Young People's Commissioner Scotland notes it requires that children's growing understanding, and level of maturity should be reflected in the weight attached to young people's views. It's a progressive right which operates over time as a child's legal and cognitive capacities develop. Similarly, the Council of Europe's 2010 Guidelines on Child-Friendly Justice explicitly state that children have a right to be heard in decisions that affect them, with adults duty-bound to take their views seriously. All of it binds adults as a right, and a duty.
What “Being Heard” Requires of Adults Procedurally
General Comment No. 12 clarifies that children of all ages have the right to express views, and that there is no minimum age limit in Article 12. The emphasis is on determining how to support them in forming and expressing views, not on a blanket exclusion.
This procedural obligation, as understood by the EU Agency for Fundamental Rights, extends to respecting the right of children to be heard in all matters that affect them, with attention to access to court, legal counsel, representation, and the avoidance of undue delay.
Age-Appropriate Explanation and “Evolving Capacities”
The Council of Europe Guidelines on Child-Friendly Justice implement this procedural obligation. The guidance requires that the explanations must be tailored to a child’s age and understanding. The Scottish Children and Young People's Commissioner offers a definition, focusing on "evolving capacities" instead of discrete age-thresholds.
General Comment No. 12 spells out that "adequate information and explanations must be provided in a child-friendly manner and, in addition, appropriate support and representation must be enabled, to support the provision of the child's views in a meaningful and informed way, adapted to the child's level of maturity." In other words, adults are obliged to ensure the child fully understands the issues, options, and possible consequences of the decision.
It's both an ethical and a legal necessity. The Council of Europe's Guidelines on Child-Friendly Justice make this plain, stating that the right to be heard "requires that children are provided with information that is adapted to their age and to the level of their understanding."
The UNCRC does not propose that children get to wear the hair shirt of adult responsibility. Rather, a decision about a child should involve that child. But the ultimate decisions rest with their guardians and courts in their best interest.
Direct Voice, Representation, and Support
Providing the opportunity for the child to "express those views freely," as required by Article 12, often includes provisions for direct participation. But it also provides for alternative mechanisms.
UNICEF and Save the Children's 2011 guide on General Comment No. 12 highlights that "[Article 12(2)] is implemented by providing children with the opportunity to express their views directly through their own words and, when necessary, through their representative or an appropriate body, carefully chosen for that role and offering as much support as needed, to make sure that children have a real chance to influence decisions that affect them."
Hearing the Child vs. Making the Child Decide
The rights the UNCRC recognises are always situated with the complication that children are not adult. And a child's perception of their interest may not be an adult's, particularly where that adult understands better the complex track their life is on: exactly where a child's view may be that "working hard on homework is not my interest, I would rather have my play time." And Article 12, General Comment 12, and the UK's Commissioner assert that adults remain responsible for making the final decision, which may be in line with or different from the child's view. Article 12 does support a child's right to a voice, not an absolute right to a decision.
General Comment No. 12 states, "Article 12 lays down a minimum criterion that applies to all policy making, programming, decision making, as well as to procedural law and practice under all the CRC provisions." The guidance then adds, importantly, that meeting this minimum criterion does not by itself mean everything else was done correctly.
The Bottom Line
General Comment 12, UNICEF/Save the Children’s reporting, the Council of Europe’s Guidelines, and the rest make it plain that adults have a duty: We have to receive the child's view generously; but we have to ultimately exercise our superior wisdom in the childs interest.