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imposes a clear legal obligation on States parties to recognize this right and ensure its implementation by listening to the views of the child and according them due weight. This obligation requires that States parties, with respect to their particular judicial system, either directly guarantee this right, or adopt or revise laws so that this right can be fully enjoyed by the child.
The child, however, has the right not to exercise this right. Expressing views is
a choice for the child, not an obligation. States parties have to ensure that the child receives all necessary information and advice to make a decision in favour of her or his
Article 12 as a general principle provides that States parties should strive to
ensure that the interpretation and implementation of all other rights incorporated in the
Convention are guided by it.
Article 12 manifests that the child holds rights which have an influence on her
or his life, and not only rights derived from her or his vulnerability (protection) or dependency on adults (provision).4 The Convention recognizes the child as a subject of
rights, and the nearly universal ratification of this international instrument by States parties emphasizes this status of the child, which is clearly expressed in article 12.
Literal analysis of article 12
Paragraph 1 of article 12
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.
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
See the Committee’s general comment No. 5 (2003) on general measures of implementation for the Convention on the Rights of the Child (CRC/GC/2003/5). The Convention is commonly referred to by the three “ps”: provision, protection and participation.