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CRC/C/GC/12 page 12

49.

In order to fulfil these obligations, States parties should adopt the following

strategies:

Review and withdraw restrictive declarations and reservations to article 12;

Establish independent human rights institutions, such as children’s ombudsmen or commissioners with a broad children’s rights mandate;8

Provide training on article 12, and its application in practice, for all professionals working with, and for, children, including lawyers, judges, police, social workers, community workers, psychologists, caregivers, residential and prison officers, teachers at all levels of the educational system, medical doctors, nurses and other health professionals, civil servants and public officials, asylum officers and traditional leaders;

Ensure appropriate conditions for supporting and encouraging children to express their views, and make sure that these views are given due weight, by regulations and arrangements which are firmly anchored in laws and institutional codes and are regularly evaluated with regard to their effectiveness;

Combat negative attitudes, which impede the full realization of the child’s right to be heard, through public campaigns, including opinion leaders and the media, to change widespread customary conceptions of the child.

  • (b)

    Specific obligations with regard to judicial and administrative proceedings

  • (i)

    The child’s right to be heard in civil judicial proceedings

    • 50.

      The main issues which require that the child be heard are detailed below:

Divorce and separation

51.

In cases of separation and divorce, the children of the relationship are

unequivocally affected by decisions of the courts. Issues of maintenance for the child as well as custody and access are determined by the judge either at trial or through court-

directed mediation. Many jurisdictions have included in their laws, with respect to the dissolution of a relationship, a provision that the judge must give paramount consideration to the “best interests of the child”.

52.

For this reason, all legislation on separation and divorce has to include the right

of the child to be heard by decision makers and in mediation processes. Some jurisdictions, either as a matter of policy or legislation, prefer to state an age at which the child is regarded as capable of expressing her or his own views. The Convention, however, anticipates that this matter be determined on a case-by-case basis, since it refers to age and maturity, and for this reason requires an individual assessment of the capacity of the child.

Separation from parents and alternative care

8

See the Committee’s general comment No. 2 (2002) on the role of independent human rights institutions.

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