Art.12.2: The right of children to express views in legal and administrative proceedings Dr. Susan Bissell Chief, Implementing International Standards Unit UNICEF Innocenti Research Centre 31 January 2008

2 BACKGROUND General Comment No.5, : IRC study on general measures (esp. participation of civil society, law reform) The Evolving Capacities of the Child, 2005 Florence, UNICEF IRC child participation expert group meeting 2005

3 BACKGROUND contd. Day of Discussion, Geneva, 2006 Initial drafts of General Comment focus on para.1 Study (first draft) on para.2 covers 61 countries, based on documents generated by reporting to CRC Committee UNICEF expert consultation, Florence, December 2007

4 Issues concerning Art.12.2 age limits inappropriate? participation always voluntary? “views” are only relevant for certain kinds of proceedings (e.g. custody) CRC does not expressly recognize right to legal personality CRC does not expressly recognize right to a remedy

5 GENERAL FINDINGS- the IRC research on general measures of the CRC most countries have taken steps to expand the child’s right to be heard in legal proceedings law reform is central education and training important, and often undertaken

6 GENERAL FINDINGS contd. investment in infrastructure common investment in programmes less common monitoring and evaluation rare

7 FINDINGS: law reform often focuses on family law, child protection and child victims some examples of amendment of codes (judicial, family, evidence)

8 FINDINGS: law reform, contd. only children’s codes recognize the right to express views in broad, general terms effectiveness of broad recognition often limited due to conflicting legislation, regulations, case law

9 FINDINGS - age limits some countries have broad general threshold (7) some have no statutory threshold, but most of these have a threshold in regulations or case law (as low 6 years, as high as 14)

10 FINDINGS - age limits, contd. many have 2 thresholds: one above which which children must be heard (as low as 6 or as high as 15; usually 10 to 12) another below which children may be heard Age limits often vary with the nature of the proceeding

11 Findings - other criteria conditioning right to be heard Family proceedings - the capacity of child to form (and express) views - the risk to the child - the relevance of the child’s views Criminal proceedings - reliability of child’s memory of the facts - ability to understand questions and give replies that can be understood - Understanding of duty to tell truth - risk to child

12 Findings- child sensitive proceedings Considerable progress has been made in many countries New laws allowing use of out-of-court statements

13 Findings- child sensitive proceedings, contd. New laws on weight of children’s testimony Use of screens and closed-circuit video Use of support persons

14 Other findings Legislation of many countries: recognizes the standing of children in some kinds of proceedings, especially family matters, often at a relatively young age (e.g.10) requires consent of children for certain purposes eg. adoption, change of name/nationality (age ranges from 10 to 14)

15 Other findings, contd. Legislation of many countries: recognizes the right of children to seek a remedy (mainly in children’s codes) recognizes a right to legal assistance/representation in some contexts

16 Two additional issues importance of legal personality especially for adolescent parents right to be heard in ‘alternative’ proceedings e.g. custody agreements

17 Conclusions/Recommendations Much experimentation and few studies of the impact of laws » caution in formulating sweeping conclusions » more research taking into account views and experiences of children Guidelines must take into account nature of proceeding

18 Conclusions/Recommendations, contd. The right to a remedy for violations of basic rights should be recognized Children’s views should always be taken into account when their best interests are at issue Methods for making proceedings child sensitive should continue to be developed & criteria for being heard adjusted with progress in this area

19 “When our opinion is sought, this is often done in the wrong way. Too many difficult questions are asked, we don't really understand the questions or too many different people ask us the same questions.” That’s My Opinion, First report by children and young people living in Belgium to the Committee on the Rights of the Child, UNICEF Brussels, p.22