Understanding article 12

The Committee on the Rights of the Child adopts general comments based on specific articles, provisions and themes of the Convention on the Rights of the Child to assist the States parties in fulfilling their obligations under the Convention on the Rights of the Child and to stimulate international organizations and specialized agencies to effectively work on the full realization of children's rights. These general comments basically are the Committee’s interpretation of the content of certain articles or thematic issues.
The Committee on the Rights of the Child has issued general comments on the following subjects:
1. The aims of education
2. The role of independent human rights institutions
3. HIV/AIDS and the rights of the child
4. Adolescent Health
5. General measures of implementation for the Convention on the Rights of the Child
6. Treatment of unaccompanied and separated children outside their country of origin
7. Implementing child rights in early childhood
8. The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment
9. The rights of children with disabilities
10. Children’s rights in Juvenile Justice
11. Indigenous children and their rights under the Convention
12. The right of the child to be heard

The Committee sometimes decides to develop a general comment on an article, provision or theme that has been discussed earlier in one of its General Day of Discussion. Since 1992, the Committee on the rights of the Child organized 13 general days of discussion on specific provisions of the Convention or on related issues. The Committee always adopt recommendations at the end of such a thematic discussion day.

In 2009 the UN Committee on the Rights of the Child published a general comment on article 12 of the UN Convention on the Rights of the Child.

Article 12 of the Convention on the Rights of the Child (the Convention) is a unique provision in a human rights treaty; it addresses the legal and social status of children, who, on the one hand lack the full autonomy of adults but, on the other, are subjects of rights. Paragraph 1 assures, to every child 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 age and maturity. Paragraph 2 states, in particular, that the child shall be afforded the right to be heard in any judicial or administrative proceedings affecting him or her.

The right of all children to be heard and taken seriously constitutes one of the fundamental values of the Convention. The Committee on the Rights of the Child has identified article 12 as one of the four general principles of the Convention, the others being the right to non-discrimination, the right to life and development, and the primary consideration of the child’s best interests, which highlights the fact that this article establishes not only a right in itself, but should also be considered in the interpretation and implementation of all other rights.

In 2006, the Committee held a day of general discussion on the right of the child to be heard in order to explore the meaning and significance of article 12, its linkages to other articles, and the gaps, good practices and priority issues that need to be addressed in order to further the enjoyment of this right. The present general comment arises from the exchange of information which took place on that day, including with children, the accumulated experience of the Committee in reviewing States parties’ reports, and the very significant expertise and experience of translating the right embodied in article 12 into practice by governments, non-governmental organizations (NGOs), community organizations, development agencies, and children themselves.

The general comment aims to support the effective implementation of article 12 and strengthening the understanding of the meaning of article 12 and its implications.
It aims to elaborate the scope of legislation, policy and practice necessary to achieve full
implementation of article 12 and to highlight the positive approaches in implementing article 12. It also propose basic requirements for appropriate ways to give due weight to children’s
views in all matters that affect them.

Dissecting paragraph 1 of article 12
The first paragraph of article 12 reads:

“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."


“shall assure”
Article 12, paragraph 1, provides that States parties “shall assure” the right of the child to freely express her or his views. “Shall assure” is a legal term of special strength, which leaves no leeway for State parties’ discretion. Accordingly, States parties are under strict obligation to undertake appropriate measures to fully implement this right for all children. This obligation contains two elements in order to ensure that mechanisms are in place to solicit the views of the child in all matters affecting her or him and to give due weight to those views.


“Capable of forming his or her own views”
States parties shall assure the right to be heard to every child “capable of forming his or her own views”. This phrase should not be seen as a limitation, but rather as an obligation for States parties to assess the capacity of the child to form an autonomous opinion to the greatest extent possible. This means that States parties cannot begin with the assumption that a child is incapable of expressing her or his own views. On the contrary, States parties should presume that a child has the capacity to form her or his own views and recognize that she or he has the right to express them; it is not up to the child to first prove her or his capacity.

no age limit
The Committee emphasizes that article 12 imposes no age limit on the right of
the child to express her or his views, and discourages States parties from introducing
age limits either in law or in practice which would restrict the child’s right to be heard in all matters affecting her or him.

Research shows that the child is able to form views from the youngest age, even when she or he may be unable to express them verbally. Consequently, full implementation of article 12 requires recognition of, and respect for, non-verbal forms of communication including play, body language, facial expressions, and drawing and painting, through which very young children demonstrate understanding, choices and preferences;

“The right to express those views freely”
“Freely” means that the child can express her or his views without pressure and can choose whether or not she or he wants to exercise her or his right to be heard. “Freely” also means that the child must not be manipulated or subjected to undue influence or pressure. “Freely” is further intrinsically related to the child’s “own” perspective: the child has the right to express her or his own views and not the views of others.

The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian. The child must also be informed about the conditions under which she or he will be asked to express her or his views. This right to information is essential, because it is the precondition of the child’s clarified decisions.

“In all matters affecting the child”
States parties must assure that the child is able to express her or his views “in all matters affecting” her or him. This represents a second qualification of this right: the child must be heard if the matter under discussion affects the child. This basic condition has to be respected and understood broadly.

“Being given due weight in accordance with the age and maturity of the child”
This clause refers to the capacity of the child, and stipulates that simply listening to the child is insufficient; the views of the child have to be seriously considered when the child is capable of forming her or his own views.

By requiring that due weight be given in accordance with age and maturity, article 12 makes it clear that age alone cannot determine the significance of a child’s views. Children’s levels of understanding are not uniformly linked to their biological age.


The general comment on article 12 has many more insightful points to better understand the right to be heard within the context of the CRC - see the full text of the general comment.