What is a Child’s Right to Be Heard?

By Stefano Gennarini, J.D. | November 20, 2014

I was at an event at UN headquarters yesterday on the “Child’s Right to Participation”, a buzz phrase for the principles of art. 12 and 13 of the Convention on the Rights of the Child, whose 25th anniversary is being celebrated today at the United Nations. According to the convention children must be heard on “all matters affecting” them, and their views must be given “due weight.”

To their credit, panelists at the event sponsored by Finland acknowledged that children all too often do not know what is best for them. But who does? That is the question.

While the principles of art. 12 and 13 can be harmless if simply viewed as a good parenting tool and as an argument for judges and public officials to deal responsibly and sensitively with children, some of the applications of art. 12 and 13 are disturbing.

What about sexual orientation and gender identity? What if a parent does not want their children to get sex ed at school? If the child has a right to information as per art. 13, does it mean that parents cannot opt out their kids from sex ed? CRC general comments already glorify sexual orientation and gender identity. The CRC, Unicef, and the Council of Europe are all on board with the right of children to information about “sexual orientation and gender identity” and that nobody has any business telling them same-sex attraction is problematic, though panelists did not bring it up during the even at UN headquarters.

And what does “due weight” mean anyway? There are no parameters to judge when a child’s views are to prevail in case they conflict with the views of their parents. This is where the “best interest” standard as a blanket principle in convention is problematic, because any consideration of what weight the views of children should receive will ultimately result in a determination of the child’s best interest.

In US law the “best interest of the child” principle overwhelmingly only comes into play when there is a finding of abuse or neglect by a child’s parents. If it is a blanket principle, as in the convention, it allows everyone (READ: IPPF, LGBTs, etc.) to contend that they know what is in the best interest of every child (READ: everything from Michelle Obama’s lunches to LGBT indoctrination). It ascribes to legislators and judges the prerogative of deciding what is in the best interest of a child even when there is no finding of abuse or neglect. The convention fails to safeguard parental rights, by failing to say when the state’s notion of best interest of the child come into play. This allows the convention to be interpreted in a way that actually undermines parental rights. This is one of the reasons the United States has not ratified the convention. There are several others.

The “right to be heard” is being promoted as sponsors of the CRC are looking desperately for countries to ratify the 3rd optional protocol of the convention, which gives children the right to make communications to the CRC. Barely over a dozen countries have taken that brave step so far. No doubt all the others are weary of the possibilities for manipulating the process. This is going to be a mechanism used predominantly to challenge parental rights many matters, but especially on homeschooling, opting out of sex ed, and allowing predators like LGBT organizations and IPPF more and more access to our children. Activists are undoubtedly already looking for children that can be used in test litigation in order to communicate a case before the CRC.

The panelists who spoke at the Wednesday even included the Chair of the Committee on the Rights of the Child (CRC), the Special Representative of the Secretary General on Violence Against Children (SRSG), a Council of Europe Representative, a Finnish Supreme Court Judge, and Latin American NGO representatives.

Here are the relevant principles from the convention:

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.

Article 13

  1. 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.
  2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
    1. For respect of the rights or reputations of others;
    2. For the protection of national security or of public order (ordre public), or of public health or morals.
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