Re-reading Article 12, UNCRC- Right to be Heard
All the Rights envisioned in the United Nations Convention on the Rights of the Child – 1989 are interdependent and very difficult to understand these Rights in isolation. One of the very important Articles related to the children’s view i.e. Article 12 of UNCRC is very substantial and important to analyze. It is the Article which has given least importance by the law makers in the States around the globe.
Article 12
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 Article 12 of UNCRC is on Right To Be Heard (RTBH) and very important tool for Child Protection, Development and Right to Life. While decoding the Article 12, there are some key words in the Article needs to be understand.
Article 12 (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.
Here, SHALL denote that it is mandatory and not the prerogative of the State parties to not legislate on RTBH. It is the duty of the state to makes provisions in the legislation to ensure the views of the children shall be given due weightage on the issues affecting their life.
As a citizen of the country, child has right to express her (read her as both female and male) views in the matters affecting her life. The expression of views shall be free and without any coercion and undue pressure. The matters affecting the life of child could be personal level in the form including any exploitation or abuse, at family level including any decision related to the in-house matters, in school any issues related to her development or school activities, and societal or community level at large.
The expression of views by the child and the consideration by the state parties shall not be passive. Maxim such as - Take the views of the children, do the formality and forget it is not permissible. Accordingly, Tokenism is also not allowed. It should be Active and due weight shall be given to the views expressed by the children.
In the end Article 12 (1) promulgate that the views of the children shall be accordance with the age and maturity of the child. Keeping the age of the child in the mind is another perquisite for taking the views of the children. The Article is open with no minimum age of the child for this purpose is worth mentioning. It has been observed that when the child is equipped with the information related to particular issue affecting her life, she is capable to take decision on her behalf. It needs professional understanding of the issue by child psychologist, Child Social Worker or any other person professional in dealing with children’s matter.
Children are not only the future of the country, as when they became adult, will have the power of voting and make significant contribution in the society. Children are the present and citizen of the country. They have views, ideas, decisions and vision. The children need ‘child friendly space and platforms to express those.
Article 12 (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.
This part of the Article 12 emphasis in creating space/opportunities for the children right to be heard.
Children are affected by various significant problems/challenges which upset their life and State party has role to play in it. There are places and instances where children have views to express such as Children in schools, children in hospital, children in institutions, children in judicial process (related to the divorce, adoption, child witness, child in conflict with the law and child victim/survivor of abuse and exploitation including trafficking/labor/organ trafficking/child marriage/online exploitation) etc..
Article 12 (2) emphasis that the children shall be given all the opportunities necessary to express their opinion in the proceedings weather they are judicial or administrative in nature. These expressions could be either directly by the child or through her representative. It also gives importance to the point that the child can also represent herself.
The procedural rules of national law are very important factor. The law shall be in place to ensure the fulfillment of this right. And in case, if there is no law it is the duty of State parties to amend the existing laws and procedure or create the new law/procedure to achieve this right. Once the laws and procedures are in place it is the duty of the State partied to ensure the effective implementation of the same.
State parties including communities have long traditional practices and biases against the children as far as RTBH of the children are concerned. Children are always treated as the property of the parents who are incapable of taking any decision.
Reading Article 12 of Convention on the Rights of the Child, 1989 is very significant in order to understand the children and their views on the issues affecting their life from their own perspective. It is very challenging to make the law/policy maker to understand that in order to decide about the life of the child, it is vital to take her views into account. Generally, policy/law makers rarely take Article 12 very seriously and not willing to induct in the substantive and procedural law. Once, this challenge is overcome, then the next step is to make the implementing agencies to understand the use of it. If this obstacles is crossed then the next challenge how to implement it, i.e. how to use it. This need training by the professional child social worker, child psychologist, case worker etc. It has been observed that when the children were informed about the issues related to their life they give noteworthy response to it. Children either on their own or through their representatives opposed their own marriages or the marriage of her friend in the community. Children have stopped the marriages and created voice in the society.
RTBH has another important factor: Child Friendly procedure including creating the environment so that child can speak freely. In any judicial proceeding of Child Sexual Abuse, the Child friendly procedure is always very helpful. In a non-threatening and friendly environment it is easy for a child to express her plight in positive manner. In schools set up when the children are free to express their views, it minimizes abuse/exploitation including sexual, bullying and corporal punishment. It also helps in contributing in the development of the school from children perspective. There are numerous examples in the Sates around the world where the children have done social change when they have been heard by the authorities.
Reading Article 12 with the Article 3 of UNCRC, further strengthens the concept of the RTBH, as it emphasis on the best interests of the child shall be a primary consideration by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies in the matter related to the children. Further reading Article 12 with Article 13, 14 and 15 helps further as Article 13 says that the child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice. Article 14 emphasis on States Parties shall respect the right of the child to freedom of thought, conscience and religion and Article 15 stress on States Parties to recognize the rights of the child to freedom of association and to freedom of peaceful assembly.
Lastly, GENERAL COMMENT No. 12 (2009) {GC No. 12} on the Right of the Child to Be Heard is very important and gives strength to Article 12. The objective of the GC No. 12 is to support and understand the scope of Article 12 and effective implementation through legislation, policy and practice necessary.