B Explanatory memorandum,
by Mrs Cliveti
The rapporteur
would like to warmly thanks Mrs Carolyne Willow, National Co-ordinator,
Children’s Rights Alliance for England (CRAE) for her valuable help
in drafting the report.
1. In June 2006, 12 members of
the Council of Europe Parliamentary Assembly supported a motion
that the Assembly analyse the way in which children are involved
in decision making in the various member states and consider measures
to be recommended to ensure their genuine, effective participation.
2. This report summarises significant developments in children’s
participation across the Council of Europe’s 47 member states since
the adoption of the United Nations Convention on the Rights of the
Child (CRC) in 1989. It begins by reflecting on the significance
of Article 12 of the CRC.
1 Children are citizens of the world
3. At the opening of the United
Nations General Assembly’s Special Session on children in 2002,
two young people, one from Bolivia and the other from Monaco, delivered
the children’s statement. The speakers located the right to be heard
within a broader context of being recognised and respected as human
beings: “We are not just young people: we are people and citizens
of this world ….You call us the future, but we are also the present.”
Note
4. The inclusion of Article 12 in the CRC, adopted by the United
Nations eighteen years ago, was the chief signifier that children
were no longer to be seen as passive recipients of adult wisdom,
welfare or diktat. Their status as human beings with rights, valid
feelings and individual views and aspirations was now confirmed.
This was not an international invitation for charity, sympathy or
good deeds for children; being no different from any other human
rights instrument, the CRC demanded respect, human dignity and a
much better life for its beneficiaries. Nearly two decades on, there
is plenty of evidence that children have broken through barriers
to engage in most decision-making processes. But which children
are being listened to and where, and what is changing as a result
of all this listening?
2 Defining
participation
5. Fifteen years ago, Roger Hart
described children’s participation as: “… the process of sharing
decisions which affect one’s life and the life of the community
in which one lives. It is the means by which a democracy is built
and it is a standard against which democracies should be measured.
Participation is the fundamental right of citizenship”.
Note
6. In 2003, the Congress of Local and Regional Authorities of
the Council of Europe adopted a charter on the participation of
young people in local and regional life which states: “Participation
and active citizenship is about having the right, the means, the
space and the opportunity and where necessary the support to participate
in and influence decisions and engage in actions and activities
so as to contribute to building a better society.”
Note
7. Whether it be sharing or influencing, or making or changing
decisions, the point is that children have the right to affect both
the processes and outcomes of decision making. The way in which
decisions are made has to change in order that children are and
feel themselves to be respected, included, comfortable and able
to express themselves: decision making must become child-friendly
and one simple way of working out what is child-friendly is to observe
how children make decisions for and between themselves, away from
adult interference. Furthermore, there must be tangible evidence
that children’s views have been given due weight – a traceable line
between what children communicated, said or asked for and what was
decided.
8. Article 12 requires three things: that states parties to the
CRC guarantee all children, of whatever age and circumstances, the
right to express their views freely in all matters affecting them;
that children’s views be given due weight in accordance with their
age and maturity; and that states parties pay particular attention
to ensuring children are “heard” in judicial and administrative
proceedings.
9. The first part of Article 12 guarantees that all children,
including infants, have the right to express their views freely.
The second element of Article 12 – that children’s views are given
due weight in accordance with their age and maturity – is often
neglected and widely misunderstood. It requires that children have
influence and that adults take seriously what children say and feel.
The reference to age and maturity implies that the greater a child’s
understanding, the more influence he or she will have on the outcome
of a decision. It does not, however, mean that children with limited
understanding should have no influence whatsoever. Furthermore,
the combination of age and maturity means that there can be no fixed
age at which a child can or cannot exercise influence – or weight
– over a decision. If it can be envisaged that there will be occasions when
an individual child, because of their age and maturity, will exercise
very little or no influence over a decision, the reverse must be
true: that there will be occasions when a child will exercise substantial
influence.
10. In addition, Article 23 recognises the right of children with
disabilities to enjoy a full and decent life, of which “active participation
in the community” is seen to be central. Interestingly, whereas
dignity is not referred to in Article 12, it is included in Article
23.
11. Several other rights in the CRC directly and indirectly support
children’s effective participation. Article 5 confirms the importance
of parents respecting the child’s evolving capacities. This is one
of the tailor-made provisions for children – many of the other civil
rights relating to participation in the CRC have their origins in the
International Covenant on Civil and Political Rights (see especially
Articles 13 to 17 and 30 of the CRC). Children’s entitlement to
information about their rights, expressed in Article 42, is key
to their involvement in decision making. The current (2007) chair
of the UN Committee on the Rights of the Child, Professor Yanghee Lee,
explains: “Many children do not know they are holders of rights
and they are indeed entitled to exercise them and that their rights
are to be protected, upheld, and promoted. This would be the first
step in enabling children to become active and responsible citizens.”
Note
12. A child involved in a Save the Children consultation on the
European Union children’s rights strategy makes a similar point:
“Because if people are not aware of children’s rights nothing can
be done to protect them. If everyone knew about children’s rights
it would be much easier to support children and solve their problems.”
Note
13. All of these rights are reinforced by several procedural rights
(in addition to the all-encompassing Article 12), namely in Article
9.2 the requirement that “all interested parties” be given the opportunity
to participate and “make their views known” in all judicial and
administrative civil proceedings relating to the child’s separation from
his or her parents. Article 21 requires that in adoption proceedings,
“the persons concerned have given their informed consent”. Article
25 grants the right to “periodic review” to children who have been
placed in health care, social care or educational settings. Child
defendants are given the right in Article 37.d to “prompt access
to legal and other appropriate assistance” and the right to “challenge
any detention before a court or other competent, independent and
impartial authority”. Further rights for children in trouble with
the law are set out in Article 40, including the right to be informed
promptly and directly of criminal charges and the right to a fair
trial.
14. In so far as the CRC establishes the minimum standards for
the optimum childhood, and expressing views and feelings is a fundamental
part of being human, all of the rights in this treaty affect the
realisation of Article 12. As the Committee of Ministers explained
in 1998, “participation is essential for bringing the United Nations
Convention on the Rights of the Child into life”.
Note
15. For example, it is now widely accepted that children’s development
and social participation are related inextricably to their standard
of living and access to health care (Articles 27 and 24 respectively).
The continuing high levels of child poverty across many member states
inevitably impedes large numbers of children from enjoying their
right to participate and children in these circumstances can be
“doubly silenced”: “The voices of children who are poor are some
of the least likely to be heard in policy and practice; they are doubly
silenced both as children and as part of the constituency of the
poor.”
Note
16. Violence also inhibits children’s participation in decision
making. Like poverty, it can crush children’s dignity, self-esteem
and capacity to express themselves with any sort of confidence.
“At a broader level”, the
World Report
on Violence against Children explains, “violence can
stunt the potential for personal development and achievement in
life”.
Note Separation from the family and institutionalisation,
including in custody, can limit considerably the opportunities for
children to participate in decision making. At the same time, children
in these circumstances are often required to contribute to highly
complex and formal proceedings that make life-changing (and not
always lifeenhancing) decisions.
17. Other important human rights obligations pertaining to children’s
involvement in decisions concerning them are listed in the appendix
to this report.
3 National
constitutions
18. If a member state does not
have a constitution, clearly children are no worse or better off
than adults. But if there is a constitution, a lot can be gleaned
about children’s position in society and the importance given to
the child’s voice and influence.
19. Of those member states that have national constitutions, six
make specific provisions relating to the promotion of children’s
involvement in decision making. Finland’s Constitution (1999) requires
that “Children shall be treated equally and as individuals and they
shall be allowed to influence matters pertaining to themselves to
a degree corresponding to their level of development” (Section 6).
20. The Polish Constitution (1997) requires parents to respect
the child’s evolving capacities and places a farreaching duty on
public authorities in relation to children’s views: “Organs of public
authority and persons responsible for children, in the course of
establishing the rights of a child, shall consider and, insofar
as possible, give priority to the views of the child” (Article 72.3).
21. Article 49.5 of the Romanian Constitution (2003) requires
that: “The public authorities are bound to contribute to secure
the conditions towards the free participation of young people in
the political, social, economic, cultural, and sporting life of
the country”.
22. The Swiss Constitution (1999) grants children and adolescents
“the right to special protection of their personal integrity and
to promotion of their development” and affirms that children and
young people can “exercise their rights according to their capacity
to discern” (Article 11). Article 41.g requires
that: “Children and adolescents are encouraged to become independent
and socially responsible persons and are supported in their social,
cultural, and political integration”.
23. In a specific article on youth, Portugal’s Constitution (1976)
emphasises: “The priority objectives of the youth policy shall be
the development of young people’s personality, the creation of the
conditions needed for their effective integration into the active
life, a love of free creativity and a sense of community service.
Acting in cooperation with families, schools, businesses, residents’
organisations, cultural associations and foundations and cultural
and recreational groups, the state shall foster and support youth
organisations in the pursuit of the said objectives, as well as
international youth exchanges” (Articles 70.2 and 70.3).
24. Children’s involvement in school decision making is promoted
(albeit to a limited degree) in Spain’s Constitution (1992). Article
27.7 provides that: “Teachers, parents, and in some cases, the students,
shall participate in the control and management of all [education]
centres maintained by the Administration with public funds, under
the terms established by law”.
4 Incorporation
of the Convention on the Rights of the Child (CRC)
25. Norway incorporated the CRC
through an amendment to its Human Rights Act in August 2003. UNICEF Innocenti
Research Centre’s study of the actions taken by European states
to implement the general measures of the CRC reports that:
- Spain incorporated the CRC in
1996;
- the Czech Republic incorporated aspects of the CRC in
its 2002 Social and Legal Protection of Children Act;
- the 2004 Law on Protection and Promotion of the Rights
of the Child brought many aspects of the CRC into force in Romania.Note
5 Participation
in the family
26. The UN Committee on the Rights
of the Child consistently urges states parties to the CRC to reflect
in legislation all of the provisions of Article 12, including in
relation to family life. Of the 14 Council of Europe member states
it has examined from 2004, the UN committee has issued recommendations
to all but two urging more action in relation to children’s involvement
in the family. The UN committee expects children not only to be
listened to, but also for their views to be taken seriously. In
this respect it has criticised “traditional societal attitudes”:
“… the committee remains concerned that the weight given in practice
to the views of the child is limited owing to traditional societal
attitudes towards children, especially within the family” (Slovakia, June
2007).
27. The importance of babies and young children being respected
and taken seriously within the family is emphasised in the UN committee’s
general comment on early childhood: “Respect for the young child’s
agency – as a participant in family, community and society – is
frequently overlooked, or rejected as inappropriate on the grounds
of age and immaturity. In many countries and regions, [young children]
… have been powerless within their families, and often voiceless
and invisible within society …. To achieve the right of participation requires
adults to adopt a child-centred attitude, listening to young children
and respecting their dignity and their individual points of view”.
Note
28. In Finland, parents have been required for more than twenty
years to consult children before making any decision affecting them.
There is no minimum age for the application of this far-reaching
duty. The Child Custody and Right of Access Act 1983 states: “Before
a custodian makes a decision on a matter relating to the person
of the child he shall, where possible, discuss the matter with the
child taking into account the child’s age and maturity and the nature
of the matter. In making a decision the custodian shall give due
consideration to the child’s feelings, opinions and wishes”.
29. The Norwegian Children Act 1981 (amended in 2007) stipulates
that: “As and when the child becomes able to form its own point
of view on matters that concern it, the parents shall listen to
the child’s opinion before making a decision on the child’s personal
situation. Attention shall be paid to the opinion of the child,
depending on the age and maturity of the child. The same applies
to other persons with whom the child lives or who are involved with
the child. When the child reaches the age of 7, it shall be allowed
to voice its view before any decisions are made about the child’s
personal situation, including which of the parents it is to live
with. When the child reaches the age of 12, the child’s opinion
shall carry significant weight. Children who have reached the age
of 15 shall themselves decide the question of choice of education
and of applying for membership of or resigning from associations.
Parents shall steadily extend the child’s right to make his or her
own decisions as he or she gets older and until he or she comes
of age”.
30. In Sweden, the Parent and Guardianship Code requires parents
and carers to consider the child’s views and wishes “in pace with
the child’s increasing years and development”.
31. The UNICEF Innocenti Research Centre reports that in the Czech
Republic parents or other caregivers must take into account the
views of the child, and the child has the right to be informed of
the consequences of any decisions the parent makes affecting him
or her. Since 2004, parents in Romania “must provide information,
explanations and advice according to the children’s age and understanding,
as well as to allow them to express their own point of view, ideas
and opinions.”
Note
32. Scottish legislation requires parents and carers making any
“major decision” to “have regard so far as practicable to the views
(if he wishes to express them) of the child concerned, taking account
of the child’s age and maturity”.
6 Community
participation
33. UNICEF’s child-friendly cities
initiative, launched in 1996, has compiled the essential ingredients
of a city fit for children. Children’s participation in decision
making is top of the list. Progress across Europe includes:
- Albania’s Youth Parliament brings
together children aged between 14 and 18 years (elected by their peers)
to influence local and national decision making. Members participate
regularly in district council meetings and have ongoing contact
with locally elected bodies;
- in Croatia, the Towns and Districts Friends of Children
Initiative has brought together a diverse range of non-governmental
organisations to work towards increasing respect for children’s
rights. Materials have been produced for local authorities, including
children’srights-based indicators;
- in Germany, the Munich City for Children Programme places
great emphasis on listening to children. The city has formally adopted
the CRC and a city-wide child-friendly strategy;
- in the United Kingdom, the Greater London Authority’s
Children and Young People’s Unit was created to co-ordinate policies
affecting the city’s 1.62 million children. In addition to its overarching
strategy, the unit produces a periodic State of London’s Children
report, using the framework of the CRC. Children’s participation
is central to the unit’s work.Note
34. Undoubtedly, children in all member states have far more opportunities
to express their views freely than their predecessors ever did.
But the CRC requires that children’s views be given due weight and
the UN Committee on the Rights of the Child is extremely protective
of this aspect of Article 12. In June 2006, in relation to Latvia,
the committee observed: “The committee regrets that little information
was provided on the attitudes towards children’s views and proposals,
as well as information on the extent to which their views have been sought,
expressed or integrated in all institutions attended by children
at the local level and in the family”.
35. In relation to Sweden, despite considerable commitment and
activity, the UN committee regretted the lack of evidence of children’s
“real influence” and repeated the expectation that participation
rights be enjoyed by all children: “… the committee remains concerned
that, despite the remarkable efforts, some children and young persons
do not feel they have any real influence in matters concerning their
life in society”.
7 Consent
to medical treatment
36. In almost all member states,
18 is the point at which children acquire full legal capacity. However,
in Scotland, children acquire full legal capacity from the age of
16 years and in Austria and Switzerland adulthood is deemed to start
at 19 and 18 years respectively. In Romania, a person can receive
“child protection” until the age of 26 years.
37. Some member states have a designated age at which children
are assumed to have equivalent adult capacity to consent to or refuse
medical treatment. In Austria and Italy this is 14 years; in Denmark,
Finland and Germany 15 years; and in the United Kingdom 16 years.
38. Importantly, all of these states have provision for children
younger than the designated age to give or refuse consent – if they
are deemed to have sufficient understanding. It is interesting to
note that, following its first examination of Sweden in 1993, the
UN Committee on the Rights of the Child’s questioned “the advisability of
permitting a child of 7 years or older to accept legal or medical
counselling without parental consent”. More than a decade later,
reflecting changing international norms, the committee in its general
comment on young children asserted: “The committee wishes to emphasise
that Article 12 applies both to younger and to older children. As
holders of rights, even the youngest children are entitled to express
their views (…). The right to express views and feelings should
be anchored in the child’s daily life at home (including, when applicable,
the extended family) and in his or her community; within the full
range of early childhood health, care and education facilities,
as well as in legal proceedings…”.
Note
39. In the United Kingdom, the child’s right to refuse medical
treatment was diluted in 1992 when the House of Lords (highest court)
determined that no person under the age of 18 years has an absolute
right to refuse treatment. The case concerned a 16 year-old girl
living in a children’s home. She was being forcibly tube fed because
of her refusal to eat. At 16 she applied unsuccessfully to the court
to exercise her right to refuse treatment on the same basis as an
adult.
Note
40. Clearly, the right to consent to or refuse medical treatment
is dependent on the right to information. In Romania, the 2003 Law
on the Rights of the Patient requires doctors to give full information
to patients: the statute does not distinguish between adult and
child patients. The Act apparently supersedes an earlier Ministry of
Health Order (1990) that prohibited information about a child’s
HIV status being passed to the child. Such information could only
be given to the parent. Human Rights Watch has researched the effects
of the 1990 order and reports that in one hospital only about 65%
of children with HIV were aware of their status. Despite the recent
legislation, “…infectious disease doctors consistently told Human
Rights Watch that they were barred by law from disclosing HIV status
to children without the parents’ consent, and that this limitation
on diagnostic disclosure to children made it difficult for them
to convince children who did not know their diagnosis to comply
with often unpleasant life-prolonging therapies”.
Note
8 Participation
in schools
41. In recent years, the UN committee
has praised several member states for their efforts towards strengthening
the child’s voice and influence in schools (Albania, Austria, Ireland,
Latvia, Lithuania, Slovenia and Sweden). The UN committee’s first
general comment, issued in 2001, on the aims of education stressed the
importance of children’s participation: “Children do not lose their
human rights by virtue of passing through the school gates. Thus,
for example, education must be provided in a way that respects the
inherent dignity of the child and enables the child to express his
or her views freely in accordance with Article 12.1 and to participate
in school life.”
Note
42. Between December 2002 and May 2003, the Council of Europe’s
“Education for democratic citizenship” project surveyed the laws,
policies and rules of member states in relation to pupil participation.
Information was obtained from 37 countries or regions. The research
report documents a wide range of positive initiatives in primary
and secondary school settings. In relation to legislative support
for the enjoyment of Article 12 in schools, the report notes: “…
practically all countries that contributed to the study have rules
or legal provisions for some form of pupil participation, though
varying in intensity. The need to create active and participative learning
opportunities in the school environment, therefore, seems to be
widely recognised in Europe as an educational principle and appears
to have a stable legal basis”.
Note
43. Noting the creation of A.S. Neill’s Summerhill “free” school
in 1924 and the first attempts by the German state of Baden-Württemberg,
in 1945, to include pupils in school decision making, the report
highlights progressive laws and practice, including:
- the requirement in the Swedish
School Act 1985 that: “It is not in itself sufficient that education
imparts knowledge of fundamental democratic values. It must also
be carried out using democratic working methods and develop the
pupils’ ability and willingness to take personal responsibility
and participate actively in civic life”;
- the concept of Schulgemeinschaft in
Austrian law: “co-operation between teachers, parents (or guardians)
and pupils”;
- the notion of pupil “co-responsibility” in German law;
- the provision in Spain’s national constitution permitting
children to be involved in the “control and management” of their
schools;
- Articles 45-47 of the Education Law 1566/85 in Greece
which gives children the right to establish “collective bodies”
in schools;
- statutory “student parliaments” in Hungarian schools and
the “general meeting of school students at least once a year in
order to review the operation of the student parliament and the
enforcement of students’ rights” (Section 63.7, 1993 Act on Public
Education);
- the National Council for Students Rights, representing
children from the age of 6 years old, established by Hungarian law
to put forward opinions and proposals to the Minister for Education,
and to “take a stand on any questions concerning students’ rights”;
- the involvement of Norwegian children in national education
bodies, including the steering group of the Norwegian Board of Education,
the National Evaluation Committee on Education and the National
Board on Vocational Education;
- the requirement on the Minister for Education in Luxembourg
to convene a national pupil conference (with representatives from
all of the country’s secondary schools) at least twice every six
months.
44. Despite these positive developments, there are very few member
states where children have the independent right to make complaints
about their education or to be heard and/or represented in administrative proceedings
concerned with exclusions. It is regrettable, therefore, that the
European Court of Human Rights still does not apply Article 6 to
educational decision-making processes. Furthermore, having a pro-children’s rights
legislative and policy framework, although essential, is no guarantee
that children will enjoy their right to be heard and taken seriously.
A survey of 3 400 school children – all members of pupil boards
– by Finland’s Ombudsperson for Children in 2006 found: “Children
wished they [had] more say on their daily school life, for instance
on physical environment, school yards, school meals and the general
structure of the school day. Children wish among other things that
they would not have to rush through their lunch and that their school playgrounds
were more pleasant and comfortable. Overall school satisfaction
would be improved by better physical school environment and by intervening
bullying incidents duly. More than 50% of the respondents think
that due to a rush and large class sizes the teachers do not have
enough time to listen to their pupils”.
Note
9 Children’s
consent to adoption
45. The Convention on the Rights
of the Child entitles children separated from their parents to “special protection
and assistance” and requires that the child’s best interests be
the paramount consideration in adoption. It would be unconscionable
for a legal order to be made severing the relationship between two
adults, when the wishes and feelings of only one of those adults
had been taken into account. This kind of action has the hallmarks
of slavery and would not be tolerated in any civilised society.
Yet children’s voices are still not being adequately heard – or
taken seriously – in the adoption process.
46. Article 4.d of the Hague
Convention on Protection of Children and Co-operation in respect
of Intercountry Adoption (1993) requires, “having regard to the
age and degree of maturity of the child”, that: children are counselled
and informed of the consequences of adoption and giving consent
(where this is required); consideration is given to the child’s
wishes and opinions; where consent from the child is a legal requirement, that
this has been given freely and in written form.
47. Not all member states require the consent of children before
an adoption proceeds. The table below provides an illustration of
the age at which children’s consent is mandatory in member states
that grant this right.
Consent to adoption
|
Member
state
|
Age
that child must give consent to an adoption before it can proceed
|
|
Slovakia
|
No minimum age – if child has
sufficient understanding, his or her consent must be sought
|
|
Lithuania
|
10 years
|
|
Croatia, Georgia and
the Russian Federation
|
11 years
|
|
Denmark, Finland and Norway
|
12 years
|
|
Poland
|
13 years
|
|
Bulgaria
|
14 years
|
48. Other states have minimum ages
at which the child’s views may simply be considered (but not necessarily
followed). In Albania this is 10 years. In Belgium and Scotland
there is an obligation to hear the views of all children from the
age of 12, and those below this age if they have sufficient understanding.
A recent change in Norwegian adoption law means that children must
be consulted from the age of 7 about their adoption, and younger
still if they have sufficient understanding. In Romania a child
must be heard from the age of 10, but younger if they have sufficient
understanding. In the United Kingdom there is a duty on the courts and,
since 2002, adoption agencies to have regard to the child’s wishes
and feelings (considered in the light of the child’s age and understanding)
– note there is no minimum age but the provision only requires that children’s
views are regarded (in child protection and alternative care social
workers must give the child’s wishes and feelings “due consideration”).
Notably, in Denmark an adoption cannot be revoked in relation to
a child aged 12 years or over unless the child gives his or her
consent.
49. In its most recent examination of Albania, the UN committee
expressed concern “that [in custody decisions and adoptions] the
views of the child are not taken into consideration at all before
the age of 10 years”.
50. The danger of fixed ages is that they reinforce the deficit
model of childhood – that children as a group lack the personality,
insight, skills and experience to influence decisions. They set
a benchmark below which all children’s wishes and feelings can be
ignored or dismissed. This is harmful to individual children and
to children’s wider social status. At the same time, a fixed age
is a social guarantee to a child in an adult’s world that they will
be listened to – they do not have to convince adult professionals
they understand and can cope with what is happening and what may
happen. As one child observed during a discussion about the implementation
of children’s rights in England: “And sometimes when you ask adults
for something they’ll ask you all these questions and they know
you’re stuck and you can’t say anything until you just give up”.
Note
51. Many professionals still see their prime function as rescuing
and rehabilitating, rather than enabling and empowering children.
It is within this context that the concept of children’s evolving
capacities operates. While legislators and policy makers debate
the merits of giving children the right to be heard at this or that
age, there are others who document the personhood of babies: “…
babies are people with thoughts, feelings and rights, as other people
close to them know … babies express their views strongly and clearly
through sounds and gestures, and in play when they make choices
and show intense concentration and enjoyment. As infants start to
use words, they make their views and wishes still more clearly known,
unless they are strongly discouraged from doing so. The right to
express a view and to be responded to begins to be honoured or withheld
from birth…”.
Note
52. It is important to stress that Article 12 bestows a right,
not a duty – children affected by adoption, or any other matter,
should never be compelled to express their views and feelings. As
the chair of the UN Committee on the Rights of the Child, Professor
Yanghee Lee, explains: “The convention does not encourage pressurising children
to participate, but to provide all necessary means to encourage
and enable children to make their views heard”.
Note
10 Other
judicial and administrative proceedings
53. The UN committee observed in
relation to Hungary in 2006:
“While the committee welcomes the efforts made
by the state party to promote respect for the views of the child,
it is aware of a general attitude in society to pay little attention
to children’s views and in particular notes that the views of the
child are insufficiently taken into account in the decision-making process
of alternative care placements and custody cases”.
54. Some member states have defined an age above which children
must be heard in judicial or administrative proceedings. Yet none
of these states gives children ultimate control of judicial and administrative
decisions, as is the case where a child’s refusal to consent to
adoption effectively stops the process. It is therefore difficult
to understand why a minimum age exists. Without knowledge of the
child’s wishes and feelings (and this includes being informed that
the child does not want to express their views or, in the case of
infants and some children with disabilities, that these views have
been obtained indirectly, through advocates or other adults close
to the child), decision makers have only a partial picture of the
child’s needs and best interests. It is worth recalling that the
first proposal to include the right to be heard in the convention (made
by US officials in 1980) included the provision as part of Article
3 – the best interests of the child. The right to be heard and children’s
best interests are often seen as being in competition, when in reality
they are mutually dependent. Try asking yourself which you would
be prepared to relinquish – the right to live in conditions conducive
to your well-being or the right to be heard and respected. It’s
an impossible and meaningless choice – the right to express oneself
to others is part of being a fully functioning human being. Yet children
are victim to this lazy thinking each and every day. A construction
of children’s best interests, at the individual or macro level,
without the involvement of children, categorically does not live
up to the promise of the convention.
55. In child protection procedures, the Parliamentary Assembly
has emphasised the importance of “[e]nsuring that children and young
people have the opportunity to express their views and participate
in planning and in actions to eliminate corporal punishment” as
well as “access to confidential advice and counselling as well as
advocacy to challenge violence against them”.
Note In the United Kingdom (England and Wales),
the 2004 Children Act requires that social workers give due consideration
to the child’s wishes and feelings when undertaking a child protection
investigation (no minimum age) or a broader assessment of the child’s
needs. A similar provision has existed in Swedish law since 1998.
11 Juvenile
justice
56. Thomas Hammarberg, the Council
of Europe Commissioner for Human Rights, has this year urged member
states to avoid criminalising children and to find alternatives
to child imprisonment. He stresses that children should have a say
in rehabilitation plans: “this is not only a right, it is also more
effective”.
Note
57. Several years ago the Parliamentary Assembly urged: “A shift
in political will is needed to focus resources on the introduction
of multidisciplinary measures at an early stage, providing children
and young people with positive life experiences, restoring democratic
and civil values, fostering creativity, solidarity, and positive
community participation”.
Note
58. The European Network of Ombudspersons for Children (ENOC)
issued a position statement on juvenile justice in 2003 recommending
that “the concepts of ‘responsibility’ and of ‘criminalisation’
need to be separated”. Some may misinterpret this proposal as a
denial of agency and out of sorts with the considerable growth over
the past decade in opportunities for children to shape and influence
decisions. How can these children’s champions argue for greater
say and influence for children while trying to shield them from
facing up to their responsibilities? But the clear and stated purpose
of ENOC’s proposal is to protect children from harmful processes,
not to deny their capacity to make, understand and reflect on decisions.
ENOC explains:
“We do believe that children should be held
‘responsible’ for their actions in line with the concept of evolving
capacities and our strong advocacy for respect for children’s views
in all aspects of their lives”.
59. This approach is reflected in UN minimum standards relating
to juvenile justice (see appendix to this report).
12 Immigration
60. Following its day of general
discussion on the right to be heard, in 2006, the UN committee issued
a reminder to states parties that: “… special attention be given
to the right of the child to be heard in immigration, asylum and
refugee procedures…”.
Note
61. Sandy Ruxton’s report for the European Children’s Network
(EURONET) describes the ways in which the rights of children seeking
asylum in European Union member states are being curtailed “against
a background of growing public hostility”. In relation to participation,
his recommendations reflect the consistent calls made by the UN
committee for legal guardians to be appointed to separated children,
skilled interpreters, equal access to education and child-friendly
procedures.
Note
13 Children’s
access to justice
62. In some member states, there
is a minimum legal age below which children are prohibited from
bringing complaints or seeking a remedy to human rights violations.
In a recent conference on international justice for children, the
Council of Europe Commissioner for Human Rights, Thomas Hammarberg,
urged member states: “to guarantee children unrestricted access
to use [human rights mechanisms]. For instance, they must ensure that
there is no legal principle requiring parents’ consent for such
action (today, this is a real problem in several European countries,
and others in all regions, where children cannot make individual
applications to domestic courts, let alone to international mechanisms).
Children should be able to apply at any age”.
NoteNote
13.1 International
complaints mechanisms
63. There is no special restriction
on children using international human rights mechanisms to remedy human
rights abuses. However, if these processes have not been made child-friendly,
they will operate just as if they were only for adults.
64. Only 14 countries
Note have
accepted the Additional Protocol allowing for collective complaints
under the European Social Charter and revised European Social Charter.
Of the 43 complaints dealt with by the European Committee of Social
Rights to date, none relates directly to children’s participation
rights (though several relate to children’s rights in other ways
– the right of children with disabilities to education, protection from
all forms of corporal punishment and the right to housing and health
care, for example).
65. Thomas Hammarberg and Peter Newell have set out the action
required by member states and international treaty bodies to enable
children (and their advocates) to challenge human rights violations.
These include the need to:
- inform
children that these mechanisms exist: use child-friendly language
and make the information widely available, including in schools
and places of detention;
- remove any obstacles, such as the need for parental consent,
age requirements, time limits and the common condition that domestic
remedies are exhausted;
- confirm, where others are acting on behalf of children,
that the application is in the child’s best interests and, where
the child is able to give consent, ensure this is obtained;
- allow groups of children and organisations led by children
and young people to make complaints;
- consider fast tracking cases affecting children “with
an understanding of children’s sense of time and the urgency of
remedying breaches of their rights while they still are in their
childhood”;
- guarantee the anonymity of child applicants;
- provide training to decision makers, judges, lawyers and
support staff;
- adjust the availability of legal aid to meet the needs
of children;
- issue judgments in child-friendly language.Note
13.2 Notable
judgments of the European Court of Human Rights
66. There are still very few cases
being brought to the European Court of Human Rights in which children are
the applicants. The six cases below, five of which were brought
by children, illustrate positive developments in the Court’s interpretation
of the rights and freedoms in the European Convention on Human Rights
(ECHR) as applied to children.
67. Three judgments against the United Kingdom confirm the “effective
participation” requirements of Article 6.
T.
v. the United Kingdom and
V.
v. the United Kingdom (1999) concern two British children
who at the age of 11 were convicted of murder and abduction.
Note The three-week trial was held
in an adult courtroom and open to the public. The European Court
of Human Rights found the United Kingdom to have breached the Convention
in three main ways. One of these related to the mode of trial (the
other two concerned the lack of review and interference by the executive
in increasing the boys’ minimum period of detention). The Court explained:
“[It] is essential that a child charged with an offence is dealt
with in a manner which takes full account of his age, level of maturity
and intellectual and emotional capacities, and that steps are taken
to promote his ability to understand and participate in the proceedings”.
The “considerable psychiatric evidence” of acute emotional distress,
including that arising from public hostility, confirmed the boys
were unable to effectively instruct their lawyers and participate
in the proceedings.
68. The Lord Chief Justice (second highest judge in England and
Wales) subsequently issued new rules on the trial of children in
crown courts. These require adaptations such as a reduction in the
court sitting period, the use of accessible language and frequent
and regular breaks. Protecting children from hostile members of the
public is also included.
69. The third case,
S.C. v. the United
Kingdom (2004), concerned an 11-year-old tried in an
adult crown court for attempted robbery.
Note A
consultant clinical psychologist had advised the judge that the
boy had significant learning impairments, with a developmental age
of between 6 and 8 years. Yet the judge continued with the proceedings
and an application to a higher court to stop the trial failed. The
boy was given a custodial sentence. The Court agreed the boy’s Article
6 right to a fair trial had been breached and noted, “when the decision
is taken to deal with a child … who risks not being able to participate
effectively because of his young age and limited intellectual capacity,
by way of criminal proceedings rather than some other form of disposal directed
primarily at determining the child’s best interests and those of
the community, it is essential that he be tried in a specialist
tribunal which is able to give full consideration to and make proper
allowance for the handicaps under which he labours, and adapt its
procedure accordingly”.
70. The importance of the child’s views in residence arrangements
was emphasised in
Bronda v. Italy (1998).
Note Two
grandparents claimed to the Court that the refusal of the Italian
courts to allow their granddaughter to live with them breached their
rights under Articles 8 and 13. The Court determined that the interference
in the grandparents’ right to private and family life was justified
and legitimate, as “the Court attaches special weight to the overriding
interest of the child, who, now aged 14, has always firmly indicated that
she does not wish to leave her foster home. In the present case,
S’s interest outweighs that of her grandparents”. In a later judgment,
Sahin v. Germany (2003), the Court
observed: “The human rights of children and the standards to which
all states must aspire in realising these rights for all children
are set out in the United Nations Convention on the Rights of the
Child”.
Note
71. The case concerned a father who had been denied access to
his daughter. One of his complaints was that his daughter was not
heard in the regional (appeal) court. The Court noted that the child
was aged between 3 and 5 years old during the time of the different
proceedings and the regional court had commissioned a psychological
expert to consider the child’s best interests. The psychologist
had several meetings with the child. In dismissing this aspect of
the father’s complaint, the Court asserted: “It would be going too
far to say that domestic courts are always required to hear a child
in court on the issue of access to a parent not having custody,
but this issue depends on the specific circumstances of each case,
having due regard to the age and maturity of the child concerned....
Consulted on the question of hearing the child in court [the psychologist] plausibly
explained that the very process of questioning entailed a risk for
the child. Such a risk could not be avoided by special arrangements
in court”.
72. The right to an effective remedy, in Article 13, includes
the right of the child to be heard directly. The Court’s judgment
in
Aydin v. Turkey (1997)
concerned a 17-year-old girl, a Turkish citizen of Kurdish origin, who
had been removed from her home by village guards and a police officer.
She was blindfolded with her father and sister-in-law and taken
to the village police station where she was raped and subjected
to other forms of torture. The Court found a violation of Articles
3 and 13 and declared: “…where an individual has an arguable claim
that he or she has been tortured by agents of the state, the notion
of an ‘effective remedy’ entails, in addition to the payment of
compensation where appropriate, a thorough and effective investigation capable
of leading to the identification and punishment of those responsible
and including effective access for the complainant to the investigatory
procedure”.
Note
13.3 National
human rights institutions
73. National bodies protecting
the rights of children are, clearly, much more accessible than international ones.
The UN committee’s general comment on national independent human
rights institutions for children stresses that they must be able
to deal with individual complaints and petitions from children.
Note Of the 22 member
states that have independent human rights institutions for children,
16 have established children’s ombudspeople that can deal with individual
complaints. The 2007 annual reports of the Children’s Ombudsperson
in Croatia (child population: 873 000) and Lithuania (child population:
745 000) show that they each received more than 400 complaints in
the preceding year.
14 Political
participation
74. It is increasingly common for
government ministers to take advice from groups of children and
young people
- advisory boards
and forums – and many member states have actively engaged children
in the development of national children’s plans, strategies and
youth policies. International conferences dealing with childhood
matters are no longer complete without children, and government
delegations frequently include teenagers. Many have commented on
the transformation in children’s role and status in the decade between
the first and second world conferences on children. In the first,
in 1990, the children present were the relatives of speakers and
dignitaries and their role was largely decorative and sentimental.
By 2002, children were present as organisers, speakers, activists
and partners in change.
75. In July 2007, Austria became the first member state to extend
the right to vote to 16 and 17-year-olds. In all other countries
children are prohibited from voting in national elections. A recent
Parliamentary Assembly resolution on human rights and democracy
in Europe recommends that the “[p]articipatory rights of all citizens should
be increased”.
Note Children
are not mentioned in the resolution. However, an earlier report,
dealing with restrictions on the right to vote, deemed 18 to be
an acceptable age for enfranchisement and 21 or even 25 as a suitable
age for the right to stand as a political candidate.
Note
76. The UN Committee on the Rights of the Child has noted, “that
in certain contexts apparent inconsistencies arise, such as when
children below the age of 18 are subject to military service yet
are not eligible to vote”.
Note
77. In October 2005, the European Court of Human Rights delivered
a judgment in the case of
Hirst v. the United
Kingdom. John Hirst, a 54-year-old British national,
brought the case. As a convicted prisoner, Mr Hirst was banned from
voting in parliamentary and local elections. The Court upheld his
claim, saying that there had been a violation of Article 3 of Protocol
No. 1 (right to free elections) to the ECHR. The Court said that
any restrictions on the right to vote must be legitimate and proportionate
– blanket exclusions are unacceptable. There has not been a case
brought by teenagers but similar arguments could clearly be made.
The UN committee has not yet made any recommendations relating to
the right to vote but its general comment on the “general measures”
that states parties must undertake in order to fully implement the
Convention stresses the importance of governments being in touch
with – and acting upon children’s concerns and views: “Given that few
states as yet have reduced the voting age below 18, there is all
the more reason to ensure respect for the views of unenfranchised
children in government and parliament …. It is important that governments
develop a direct relationship with children, not simply one mediated
through nongovernmental organisations (NGOs) or human rights institutions.
In the early years of the Convention, NGOs had played a notable
role in pioneering participatory approaches with children, but it
is in the interests of both governments and children to have appropriate
direct contact.”
Note
78. There are campaigns, led by young people, for lowering the
voting age in Norway and the United Kingdom. This autumn the Children’s
Ombudsperson for Norway, Reidar Hjermann, came out in support of votes
at 16: “We have ten years of compulsory school. It is the school
system that will set us up to participate actively in our society.
If the school does not prepare young people to elect politicians,
it is not the young that have failed, but the school. Voting at
16 will coincide with the last year of compulsory school. The last
year in school is indeed a fitting time to participate in the elections
and forming of our society.”
Note
79. Some member states have temporarily opened up parliament to
children, most notably in Portugal where the young people’s parliament
has had an annual sitting in parliament since 1995. Gordon Brown,
the United Kingdom’s Prime Minister, has recently proposed a similar
arrangement for the United Kingdom Youth Parliament. Most member
states now have thriving local, regional and national youth councils,
forums and children’s self-advocacy organisations.
15 Human
rights monitoring
80. The UN committee expects member
states to consult children in the preparation of initial and periodic reports.
In addition, it is becoming increasingly common for children from
member states to report their views and experiences directly to
the UN committee. In the United Kingdom, the Children’s Rights Alliance
for England has obtained a major lottery grant to engage at least
12 000 children in the CRC reporting process. The project – called
“Get ready for Geneva” – is directed by a children’s steering group
and children are leading focus groups, online surveys and media
debates. A national competition will be held to assemble the youth delegation
to attend the pre-sessional meeting in Geneva in 2008. Importantly,
the project will continue after the UN committee has issued its
concluding observations – children will select their priorities
and advocate for change.
16 Conclusions
and recommendations
81. At the launch conference of
“Building a Europe for and with children” in Monaco, children called
for “sincere, equal and productive”
Note participation. The intergovernmental
conference on children in Europe and central Asia called for “authentic
mechanisms”
Note to
ensure children’s effective participation in decisions concerning
them. Debates about participation no longer invoke adults to simply
listen to children; today’s priority is that children are supported
to engage in effective action and, above all, that what they do
and say leads to positive change for children.
82. There is an urgent need to raise awareness among all those
living and working with children, and making decisions that affect
them, about the dual requirements of Article 12:
- that every time a decision is
being made that affects a child or children the views, wishes and
feelings of that child or children must be sought, irrespective
of the child’s age or circumstances. There is no requirement in
Article 12 that the child’s views must be communicated in a particular
way – the provision is deliberately flexible in order to enable
all children, including those with disabilities, to express themselves
freely;
- that every time a decision is being made that affects
a child or children the views, wishes and feelings of that child
or children must be given due weight in accordance with the age
and maturity of the child or children. Age and maturity must be
considered together, and these two factors do not simply relate
to the child’s intellectual capacity. The expression of feelings,
the child’s developing personality, and his or her ability to cope
with different emotions and possibilities, are equally important.
All decision makers must take seriously the views, wishes and feelings
of all children, including the very youngest. The amount of influence
that children have in any decisionmaking process will depend on
their age and maturity. It will be extremely rare for a child who
has expressed views, wishes or feelings not to have any influence
at all. Over time, it will become more common for children’s views,
wishes and feelings to be a determining factor in decision making
that affects them directly.
83. Additional efforts are required to ensure that judicial and
administrative proceedings enable children to express their views
freely in an atmosphere of respect, trust and mutual understanding.
84. Each member state is urged to:
- review its legislation, policy and practice in relation
to children in all areas of decision making to assess the extent
to which children’s views are heard and taken seriously. Children’s
own reflections and experiences shall be central to this review.
Where children’s consent is required before an action can be taken
by a public authority, for example in adoption or health care, the
effect of any minimum age requirements will be considered and rectified
where necessary. A national plan of action will set out the actions
to be taken by the member state in order to increase children’s
participation in all decisions concerning them. The particular needs
of children with disabilities, young children, and those in detention
or other hazardous environments will be addressed;
- give the strongest legal protection to Article 12, including
in national constitutions and human rights and all relevant sectoral
laws, including, for example, education, juvenile justice and immigration.
There shall be no minimum age requirement attached to the child’s
right to express his or her view;
- apply Article 12 to all public authorities, all public
services and all areas of life. There shall be no immunity for particular
settings or professions;
- undertake public education programmes aimed at parents
and children about the child’s rights to express their views freely.
The programmes shall portray the child as a human being with feelings,
views and aspirations and as the holder of rights. Negative media
representations will be challenged;
- ensure that civil codes and legislation describing the
rights, duties and responsibilities of parents stress the importance
of respect for the child’s human dignity, feelings and views and
include the obligation on parents to give due weight at all times
to the child’s views in accordance with the child’s evolving capacities;
- consider the implementation of Article 12 within a broader
strategy for the implementation of the CRC, giving special attention
to the eradication of child poverty and the removal of inequalities;
- invest in the development and effective functioning of
organisations led by children and young people, ensuring there are
no legal barriers to children’s self-advocacy. Involve these organisations
in the ongoing monitoring of the implementation of the CRC across
the member state;
- recognise that the continuing existence of legally sanctioned
violence in different settings, including in the family, harms children
as individuals and as a social group. The commitment to children’s participation
requires the removal of laws that denigrate children as people.
