One of the things the UNCRC does is to make it clear that human rights apply to children and young people as much they do to adults.
Children and young people don’t have as much power as adults: they can’t vote, and they don’t have as much money. But Article 12 says they still have the human right to have opinions and for these opinions to be heard and taken seriously.
It says that the opinions of children and young people should be considered when people make decisions about things that involve them. Their opinions shouldn’t be dismissed out of hand on the grounds of age, but taken seriously with their evolving capacities taken into account. Article 12 also says children and young people should be given the information they need to make good decisions.
As children grow older, they become more able to understand their lives and make decisions that affect them. This happens gradually, and it doesn’t happen at the same speed for everyone— it depends on things like a child’s experiences, education and maturity.
A child’s ability – or capacity – to make a reasoned decision will depend on the decision being made.
Evolving capacities is a term used to refer to the increasing ability to make reasoned decisions in different parts of a child’s life.
What does the UNCRC say about evolving capacities?
Article 5 of the UNCRC says that the direction and guidance parents give their children should reflect the evolving capacities of each child. When a child is younger, they will need more protection, as they may be more likely to make choices without considering or understanding the consequences. But as a child gets older, this will slowly become less true.
Evolving capacities are also important to Article 12 of the UNCRC.
All children have the right to have their view heard and for it to be taken seriously. But the weight their view is given is dependent on their evolving capacities― the extent to which they can understand the issue and the possible outcomes of a decision.
The concept of evolving capacities should never be used to dismiss a child’s view. The child’s view needs to be taken seriously whenever it’s heard as it can change what an adult considers to be in a child’s best interests, by giving them a better idea of what’s important to the child and what they consider distressing.
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Being able to speak up
Article 12 is also concerned with making sure children and young people feel able to express their opinions. It says that they shouldn’t feel their opinions will be dismissed or regarded as invalid because of their age. It also says that children and young people need to know about this right so that they can exercise it, and that adults need to know about this right so they don’t dismiss it out of hand.
As well as this, children and young people should be able to complain about any aspect of their lives as easily as adults can. They should have ways to complain about those in a position of power over them – such as parents, guardians or teachers – without an adult knowing, and complaints procedures should be easy for them to access.
The opinion of a child and young person should be considered everywhere, including in their home, in their workplace and at school. This is true no matter how young that person is, although the weight their opinion is given should change as they grow older or become more mature.
Article 12 applies to everyone, and care should be taken to make sure it can be exercised by everyone in reality. For example:
- special materials should be produced for children and young people with disabilities if they need these to make their views heard,
- special consideration should be given to children and young people in vulnerable situations, such as those in care or refugees,
- care should be taken to make sure the opinions of girls are respected just as much as those of boys.
Article 12 doesn’t mean children and young people have to express an opinion if they don’t want to. They can refuse to give their opinion for any reason, and Article 12 shouldn’t be used to pressure them into giving it.
Article 12 should be taken into account when governments pass laws. New laws should take into account the right of children and young people to have opinions in any and all areas of their lives.
As well as this, one of the Commissioner’s jobs is to make sure children and young people can have their voices heard.
He does this by:
- telling children and young people about Article 12 and the rights that it gives them
- telling adults to think about article 12
- finding out what stops children and young people from having a say, and thinking about how things can be changed.
You can find information about how to complain about public services on the Scottish Public Services Ombudsman’s website.
If your complaint is about the NHS, NHS inform has a factsheet for children and young people about how to make complaints about NHS services.
The Patient Advice and Support Service offers information about NHS complaints procedures, independent advice and advocacy support.
Complaints about independent healthcare services (not NHS services) should be made to Healthcare Improvement Scotland.
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