This article is written by Satyaki Deb, a B.A.LL.B.(Hons.) student from the Department of Law, Calcutta University. This article provides an exhaustive overview of the children’s right to be heard from an analytical viewpoint.
It has been published by Rachit Garg.
Growing up as children in this mean and hard world is not a smooth experience for a majority of children. They lack the full autonomy of adults and till date are hardly taken seriously even in matters directly concerning them. What is grossly missing is the awareness that children too have human rights just like adults and one such key right is the right to be heard and taken seriously in accordance with their age and maturity. It is indeed true that it is the children who can change this world if given the chance and it is worth fighting for a world where due attention is paid to the views of the children in matters affecting them.
A child’s right to be heard
Article 12 of the United Nations Convention on the Rights of the Child (UNCRC) envisages the provision of a child’s right to be heard and taken seriously. According to this provision-
“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 above two paragraphs portraying a child’s right to be heard, can be boiled down into the phrase- ‘participation of children’ where participation means a continuous process of children’s expression and ongoing involvement in the outcome of different matters that concern them at various levels. It requires the adults to share key materials and have conversations with the children out of mutual respect and that their views be fully considered in good faith based on their age and maturity.
The right of children to be heard is one of the core values of the UNCRC and is considered one of the four key principles of the Convention. Infact, this right is so crucial and larger than just a right in itself that it should be considered in the interpretation and implementation of all other child rights such as the ‘right to non-discrimnation’, ‘the principle of having the best interest of the children’ and ‘the right to survival and development’.
When was the child’s right to be heard first recognised
The right to be heard, along with other child rights, was recognised in the United Nations Convention on the Rights of the Child (UNCRC) and then adopted by the UN General Assembly on 20th November,1989 at a time when the world was not yet ready to listen to the views of the children even in matters directly related to them. 193 states were a party to this convention and 191 countries signed the CRC. More than three decades down the timeline, the culture of listening seriously to the views of children is not yet widespread and unfortunately even unacceptable in most places.
Importance of a child’s right to be heard
When a child gets to exercise his right to be heard, then it is not only beneficial for the child but also uplifts the family of the child, the society, the school of the child, and even the state and democracy. The importance of a child’s right to be heard and taken seriously in matters directly concerning them are as follows:
Participation promotes personal development
Most children, especially the children of developing and poor countries, spend their entire childhoods where their ideas, thoughts, views and decisions concerning them either get rejected immediately or ridiculed by adults. Especially the marginalised and poor children who face the brunt of a dictator adult family or society. But when children see that adults are taking them seriously and implementing their ideas in matters linked with them, it goes a long way in boosting their morale, self-esteem, cognitive abilities, social values and people skills, thereby leading to an overall personal development.
Participation promotes better decision making and results
There is a saying that we should never judge a man before walking a mile in his shoes. This popular adage can be modified with respect to a child to become- ‘Never judge a child unless you have walked a mile in his shoes.’ This is because adults mostly do not have a comprehensive picture of what goes on in the minds of a child, what burdens weigh on their tiny shoulders and what monsters hide beneath their beds tormenting them. This lack of insight into the children’s lives leads the adults into taking ineffective decisions in matters of legislation and policies concerning them. A child’s perspective in matters related to him or her is going to serve the child the best. Afterall, when the goal is always to do what is best for the child, there is absolutely no logic in keeping the children’s views on the sidelines. Inclusion of children’s perspectives leads to more relevant, relatable, effective and sustainable decisions and outcomes in matters concerning them.
Participation leads to better protection of children
It is extremely unfortunate that historically most children have been kept in the dark and are actively silenced about their rights. This type of system serves the child abusers the best for then the children do not realise that they are being wronged and that they have the right to a better childhood. Encouraging the children to speak up to people with necessary authority and providing mechanisms to ameliorate their cursed situations make the exposing of abusers and child rights violations a lot easier. Participation of children leads to them being aware that they are entitled to certain inalienable core human rights. And when they are aware they speak up more about the same and then adults can take better actions in protecting them in families, schools, child homes etc.
Participation prepares the child for development in civil society and promotes tolerance and respect for others
Adults who are against the children’s right to be heard refuse to realise one crucial thing that suddenly at the age of eighteen, one cannot grow up. Growing up is a process. When the children see that their views matter, their thoughts are being implemented in matters concerning them, it teaches them a lot of core values necessary in a human being. They start believing in themselves, they learn to address their insecurities properly, they grow tolerance towards contrary opinions and ideologies, they learn decision making and negotiating etc. Thus, the participation of children leads to the building of a more humane and civil society.
Participation promotes accountability and transparency
The existence of rights is not enough unless the same is corroborated with awareness of the said rights. So, when children are made aware of their rights and they get to exercise their right to be heard, the government machinery at different levels becomes forced to be accountable. Politicians can fool us as long as the citizens remain oblivious. But with wider participation of children in policy making in matters concerning them, political promises will be required to be fulfilled, resources need to be allocated better- in general participation of children will lead to better accountability and transparency.
Arguments against a child’s right to be heard
Even though the right of children to be heard has been recognised internationally, there is a section of people who are opposed to children having the right to be heard. It is very important to address their arguments or concerns. They are stated as follows:
Lack of maturity, experience and competence of children
It is often argued that children simply lack the requisite skills to know what is best for them. But most people forget that growing up is a process. At different stages of childhood, different levels of competency are achieved by the children that remain grossly underutilised with the blanket argument that kids lack maturity, competence and experience. Provided that children are provided with sufficient information and mechanisms to express their views and ideas, they indeed can decide what is best for them. Adults must consider subjectively what the children are saying instead of rejecting their voices outright simply because of their youth.
Children must learn responsibilities before enjoying rights
Some people are of the view that children must know, understand and carry out their responsibilities before they get to claim their rights. It must be realised that toddlers and children cannot be denied rights until they can do duties because the best way to teach kids about responsibilities is to respect their rights. When the children will see that they are being heard and taken seriously in matters concerning them, they will learn to respect and value the ideas of others too.
If children are granted the right to be heard, their childhood will get messed up
The right to be heard is not an obligatory right. It in no way forces a child that he or she must participate and because of such compulsion the childhood may be destroyed. On the contrary, the right to be heard of the child is a right that encourages and teaches a child to make better decisions, and helps in the coping with situations like parental conflicts and divorces, friendship decisions etc. In reality, studies have shown that when children get to exercise their right to be heard, they have a more meaningful childhood because then they become an integral part of the decision-making process, thereby directly improving the nature and quality of their childhood.
If children are granted the right to be heard, they have less respect for parents and elders
This is one of the most misunderstood notions that if the views of the children are given importance, it will lead to erosion in their respect for their parents and elders. Most disputes happen between parties because both parties are busy in putting forward their viewpoints. Nobody wants to listen because nobody was listened to. So, from their childhood, when children see that they are being heard, they will learn to hear too. Moreover, no one is disputing that respecting parents, elders are important. The same has been recognised in Article 29 of the UNCRC where stress has been given on teaching children respect for parents. To solve this impasse, if children are taught that their views matter and are important but it is not the only view that is important, then it will be a win-win situation where children will enjoy their right to be heard while learning to respect their parents too. So, when children know that they alone do not have a voice or say in matters concerning them, they will definitely learn respect for parents and elders along the way. On the other hand, adults who in their childhood were never listened to should train themselves to be sensitive about the voices of the children instead of being adamant and trapped in a vicious cycle of stifling the voices of children because of their youth.
Children’s right to be heard is a western concept thrust upon other countries
It is very demeaning that a basic human right of a child can be tagged as a western concept in an attempt to reduce its significance. The UNCRC had hundreds of signatories and later on, it was ratified by many more. This international recognition of child rights was not orchestrated by western countries but was accepted by many other countries of their own accord. A look into the history of various countries all over the world shows that children used to play a defining role in their childhoods. So, the notion that the child’s right to be heard goes against the conservative ideals of other countries is nothing but a misconceived agenda to suppress the child’s right to be heard, which is hatched and propagated by perverts and child abusers.
Legal analysis of Article 12 of the convention of the rights of the child (CRC)
In order to fully comprehend the dimensions of this very fundamental human right to be heard of the child, it is pertinent to analyse the provision of Article 12 envisaging the same from a surgical and analytical perspective.
Legal analysis of Article 12 para 1 of the CRC
Para 1 of Article 12 of the UNCRC goes as follows: “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.” It can be analysed as follows:
Assuring the right of the child to express views
The use of the word ‘assure’ in the statement of para 1 of Article 12 is extremely significant. It means that the government of the states are under a duty to form policies, laws and regulations which will implement the right to be heard for all children. It is noteworthy to mention here that children with disabilities, marginalised children, and minority children mostly do not get to exercise this fundamental right to be heard. Governments must make special additional provisions in the laws and regulations to accommodate them. This solemn duty of the government applies to children as individuals, to specific groups of children and children collectively.
- Children as individuals should be heard in judicial and administrative proceedings, in parental separations or divorces, in medical treatments, etc.
- Children as specific groups such as girls, minority children, marginalised children, children with disabilities, children from indigenous communities etc. need to be heard before laws, regulations and policies concerning them are put into force.
- Children collectively as a constituency should be heard in matters that affect all the children as a whole such as National Plans of Action (NPAs), Poverty Reduction Strategy Papers (PRSPs), access to healthcare, or protection from all forms of violence, etc.
Every child is competent to form his or her views
This right to be heard is not meant for only a particular age group or class of children. On the contrary, this fundamental human right applies to all children without exception who are “capable of forming his or her views”. It is pertinent to point out at the earliest that it is not the burden of the child to prove his or her competence. The government must work on the presumption that the child is competent to form his or her own views. As a matter of corollary, it is not necessary for the children to comprehensively understand the issue before forming views. They need to have a simple understanding only to form a view on the matter. It is established that children from a very tender age can form their views even when they cannot express the same in words. What is simply necessary is an adult with a sensitive heart who cares enough to respect the view of the child.
The right to express views freely
The child must be able to “express those views freely”. It will be futile for a child to have the right to be heard if he or she is too scared to express his or herself freely or is manipulated or is under coercion or undue influence from adults to speak their tongue. It should also be remembered that the right to be heard is not a duty. The child can even refuse to express his or her views and that should be respected. Moreover, the children should be given relevant information and a safe space so that they can express their views freely without fear of judgement, punishment or criticism.
The right to express views on all matters related to them
The right to be heard should not have any subject restrictions. Instead, the child should be able to express his or her views “in all matters affecting the child”. This is important because every decision making process has an impact on the child and in this way, any matter from the family level to the international level affecting the child, is a matter of legitimate concern. The UNCRC also believes in a wide interpretation of the term “in all matters affecting the child”. Thus, the children should be heard sincerely in all matters affecting them.
The obligation to consider the child’s view as per his or her age and maturity
The children’s right to be heard has one qualifying condition i.e. the views of the child should be given weightage as per their age and maturity. Age does not imply the level of maturity for many young kids have higher levels of maturity mostly because of the unique hardships they have faced. The child must be informed of the implications of his choices and matters at stake so that he or she can make an informed decision. Most importantly, if it is not possible to comply with the child’s decision then the child should be explained the reasons for the same. So, giving due regard to the evolving maturity of the children, their views should be heard and taken seriously.
Legal analysis of Article 12 para 2 of the CRC
Para 2 of Article 12 of the UNCRC goes as follows: “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.” It can be analysed as follows:
The right to be heard in judicial or administrative proceedings
The UNCRC has emphasised that the children have the right to be heard in every judicial proceeding affecting them such as custody proceedings, adoption proceedings, cases related to destitute and unaccompanied minors, refugee and asylum children etc. In fact children victims of sexual and other abuses and children in conflict with the law should also be heard in their judicial proceedings. Moreover, the children also have the right to be heard in administrative proceedings related to education, health, environment, living conditions, or protection that affect them. In case, alternative dispute mechanisms such as arbitrations, mediations or negotiations are happening affecting the children, they have the right to be heard in those proceedings too.
The right to be heard directly or by means of a representative body
The children should be given the option of being heard directly or through a representative body. But it is always preferred that the children, who can form their views, are heard directly. In the cases where procedural laws of a country require the representation of a child by another person, extreme caution should be used to figure out that it is indeed the view of the child that is being conveyed accurately by the representative and not the view of the parents or guardians.
The exercising of the right to be heard in a manner consistent with national procedural laws
This last part of para 2 of Article 12 of the CRC must not be misunderstood to mean that the right to be heard of the children can be suppressed or rendered moot by procedural rules of national law. On the contrary, the government of a nation is encouraged to make necessary adaptations to the country’s procedural laws to accommodate this fundamental right to be heard of the children.
Link of Article 12 with other provisions of UNCRC
No right can be read in isolation and Article 12 of the UNCRC is no exception. It needs to be read in conjunction with other provisions of the UNCRC. They have been so linked and discussed as follows:
The Committee on the Rights of the Child (CRC) decided that Articles 2, 3, 6 and 12 shall not be limited to child rights but shall be construed as general principles in relation to the implementation of all other rights.
Article 12 and Article 2 of the UNCRC
Article 2 of the UNCRC envisages the provision of ‘the right to non-discrimination’. The right to be heard of the children must not be dependent on their caste, creed, gender, background, place of birth etc. Special attention needs to be paid so that the girl children, marginalised children, children of sex workers, refugee children, etc. get the same encouragement and platforms to express their views on matters affecting them.
Articles 12 and Article 3 of the UNCRC
Article 3 of the UNCRC envisages the provision of ‘primary consideration of the best interests of the child.’ According to Article 3, every executive, judicial, legislative, administrative and private bodies dealing with decisions affecting children must act in the best interest of the child. In other words, the interest of the child should always be prioritised. So, listening to the views of the child under Article 12 should be an integral part of the decisions made in the best interests of the child under Article 3. This is very important because decisions made without hearing the children’s views can never be in their best interests.
Articles 12 and Article 6 of the UNCRC
Article 6 of the UNCRC envisages the provision of the ‘right to life, survival and development.’ Participation of children in the decision making process under Article 12 helps in the growth and development of a child. It inculcates competence and confidence. Children cannot be magically expected to make the right decisions from the day they hit eighteen years of age. Instead, if the children are taught how they can make decisions for themselves from childhood, their life and development will be much better. Government must ensure means to ensure wider participation of children in the decision making processes under Article 12 so that their inherent right to life under Article 6 is fully visualised.
Civil rights and freedoms
The right to be heard under Article 12 can be fully realised only when it is read holistically with other civil rights and freedoms envisaged in the UNCRC.
Article 12 and Article 13 of the UNCRC
Article 13 of the UNCRC envisages ‘the right to expression’ and people often confuse it with the right to be heard under Article 12. These two rights, though prima facie appear to be the same, embody different rights in reality. Article 13, in its right to expression, means the right of the child to have and express opinions without any restrictions from the government.
Thus, there is a passive duty on the government to steer clear in the expression of opinions of the children subject to reasonable restrictions under Article 13(2). On the contrary, Article 12 is all about the right to be heard but only in matters affecting the children directly and it imposes an active duty upon the government to make special accommodations so that the children can be heard seriously in matters directly affecting them.
Article 12 and Article 14 of the UNCRC
Article 14 of the UNCRC envisages ‘the right of children to freedom of thought, conscience and religion.’ As children grow up, based on their evolving maturity, children should be able to exercise their right to be heard under Article 12 and choose their own beliefs, ideas or religions without any emotional or moral coercion.
Article 12 and Article 15 of the UNCRC
Article 15 of the UNCRC envisages ‘the right to freedom of association and peaceful assembly.’ Children can form better opinions and views when they mix in groups and form associations. Children should have safe spaces where they can freely exchange their views with other children without external coercion or undue influence. So, the government should take active steps to promote child-led initiatives, associations etc. so that the children can express views under Article 12 together and pursue implementation of their rights together. But children should be kept at bay from groups associated with military outfits or specific political regimes.
Article 12 and Article 16 of the UNCRC
Article 16 of the UNCRC envisages the provision of ‘protection of privacy’. The right to privacy is a fundamental human right and besides adults, children are also entitled to this basic right. It is very important because children are vulnerable in nature and if the privacy of the children is not protected, then the children will never be able to express their views under Article 12 freely for the fear of punishment or retribution will coerce them into expressing the opinions of adults.
Article 12 and Article 17 of the UNCRC
Article 17 of the UNCRC envisages the provision of ‘access to appropriate information’. It is pertinent to remind here that the best interest of the child should always be prioritised under Article 12. And it is needless to say that only a well-informed decision can be in the best interest of the child. So, in order to facilitate the participation of children under Article 12 it is very important that children get information that affects them easily in child friendly formats.
Evolving capacities and the exercise of rights
Article 12 and Article 5 of the UNCRC
Article 5 of the UNCRC envisages the provision of ‘parental guidance and the child’s evolving capacities’. Age and maturity do not necessarily go hand in hand. Maturity gradually evolves within a child mainly based on the environment they are growing up in and daily circumstances. Parents and legal guardians need to respect the evolution of mental maturity within the children and with growing maturity, more weightage should be given to the views of the children as per the provision of Article 12.
Implementation of Article 12 of UNCRC
The measures necessary to effectively implement Article 12 of the UNCRC are as follows:
- The governments should enact proper legislation, amend old laws and make special legal accommodations so that the children’s right to be heard under Article 12 is well established as a right of all children without exceptions.
- The setting up of NGOs and independent human rights bodies should be encouraged to facilitate raising awareness about the right to be heard of children and support children in getting their voices heard on proper platforms.
- The government should encourage the establishment of proper training facilities for the professionals working with child rights so that they can do better in their daily advocacy for child rights.
- Proper standards should be set to which the progress or extent of children’s participation in matters affecting them can be measured with proper data and independent research.
- Awareness should be raised about the children’s right to be heard in a sufficient manner so as to do away with the deep-rooted adult beliefs that whenever children speak their minds they are being rude or disrespectful to elders and that they can never contribute meaningfully to a just decision.
Children’s right to be heard in India
India ratified the UNCRC on 11th December 1992 and in the early years of this century enacted the Commissions for Protection of Child Rights Act, 2005 as a sign of commitment towards enforcing child rights. This Act came into force on 5th February 2007. In this Act, ‘child rights’ have been defined under Section 2(b) as the rights which include the child rights adopted in the UNCRC and later ratified by the Indian government. This definition adopted by the Indian government, by the use of the word ‘includes’, shows that India wishes to enforce a wider dimension of child rights than envisaged in the UNCRC. As a matter of corollary, it is clear that India has already declared the right to be heard as a child right under Section 2(b). Moreover, by virtue of this Act, the National Commission for Protection of Child Rights (NCPCR) has been set up to safeguard the rights of the children.
Furthermore, on 26th April 2013, the Indian government adopted the National Policy for Children (NPC) to facilitate better enforcement of child rights in the country and needless to say that the children’s right to be heard is included in the same.
One of the key safeguards introduced by the Indian government by various legislations for effective enforcement of child rights is that there can be no waiver of child rights under any conditions. An example of this can be found in Section 3(ix) of the Juvenile Justice (Care and Protection of Children) Act, 2015 which expressly makes the waiver of any child rights impermissible or invalid. Thus, it can be concluded that the child’s right to be heard cannot be waived just like other fundamental rights in our constitution.
Also, to safeguard the dignity and rights of the child victim, the Protection of Children from Sexual Offences Act, 2012 (POCSO) has provisions which provide for a child-friendly platform at every stage of the legal process. Inter alia this ensures that the child has a friendly environment to express his or her views freely, thus exercising his fundamental right to be heard.
Moreover, to ensure that the voices of the children are heard in matters affecting them, the concept of Makkala Panchayats (children’s panchayat or village council) and Makkala Anche Pettige (Children’s Post Box) have been introduced in various Indian villages.
It has been almost close to three decades since India ratified the UNCRC in 1992. The progress made so far in the implementation of child rights is indeed praiseworthy. Para 2 of Article 12 has been stressed a lot in various Indian laws and regulations by which children are heard in administrative and judicial processes in child-friendly setups. Even around the world, more importance is given to para 2 than para 1 of Article 12. But other than judicial and administrative proceedings affecting the children, hardly any importance is given to the views of the children in other matters. At the personal level, overprotective and over-possessive parents and guardians especially the conservative countries refuse to give due importance to the views of the children. Children speaking their minds is still considered a sign of disrespect and thus considered worthy of no attention or a condescending laugh at the best. Serious awareness needs to be raised among children, parents and legal guardians that the right of the child to be heard is a fundamental right of all children in all matters affecting them as per their maturity.
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