[LONDON, 13 October 2009] - Children face a confusing array of minimum ages at which they are deemed capable of making decisions for themselves – some of them potentially life-changing. The age at which children can have a say in their medical treatment, for instance, or get married or vote, or choose or reject a religious belief or faith, varies significantly across and even within cultures. The legal minimum age may or may not reflect what children themselves feel they are capable of.
These age-based restrictions are founded on two main assumptions made by adults: first, that children lack the capacity to take responsibility for many decisions about their lives and must therefore be protected from the consequences of bad decisions; and second, that age limits are a crude but simple way to achieve that protection – even if some children might attain competence at a younger age, and others attain competence later.
But are rigid age limits the best way of determining children's competence? Age-based approaches rely heavily on adults’ perceptions of children’s competence. In some societies, children are already taking on responsibilities for decision-making that would be exceptional elsewhere; other societies protect children to the point where they are given little scope for independent decision-making.
So what are the alternatives? The concept of “evolving capacities”, as set out in Article 5 of the United Nations Convention on the Rights of the Child (CRC), addresses these dilemmas by introducing the idea that children should be able to exercise their rights as they acquire the capacity to do so, rather than when they reach a certain age. It requires parents or legal guardians to guide children appropriately and respect the extent to which they can exercise their rights for themselves.
This issue of the Review explores what the concept of evolving capacities means in practice. It looks at: the role of age in determining competence; other factors that contribute to children's evolving capacities; examples of where children's involvement in decisions is competency-based and how competence might be tested; how to balance respect for children's autonomy with their right to protection; and how, when and to what extent parents or legal guardians should support and encourage children to exercise their rights.
The Review raises questions, in particular around disputed areas of children's rights. For example, while some issues are relatively straightforward and uncontested – eg, a child should clearly not be able to participate in armed conflict as a combatant – questions around the minimum age of criminal responsibility, for example, are much harder to resolve.
The starting point must be respect for rights and children’s evolving capacities. It is true, of course, that adults caring for very young children have to make many decisions about children's lives. But, as children grow, it is important that adults take every opportunity to encourage children to discuss, share and then take over decision-making for themselves. Involving children is essential for encouraging and preparing them to exercise their own rights.
Gerison Lansdown opens the Review by introducing the concept of evolving capacities.
Prinslean Mahery weighs up the pros and cons of different legal approaches to children's right to consent to medical treatment, explaining how South Africa has dealt with the issue. In a related case study, Alejandra Portatadino, an Argentinian activist for the rights of lesbian, gay, bisexual and transgender people, discusses her work on a case in which a court granted a 17-year-old the right to a gender reassignment operation, giving an insight into the lives and decisions faced by transgender children and young people. She offers guidance for children, their parents, and advocates dealing with similar issues.
Respecting the rights of children does not diminish the role of parents in children's lives, but emphasises the need for parents to take children's views into account when making decisions that affect them. A factfile on promoting children's rights in the home sets out the benefits for all of involving children in family decisions.
The fact that childhood covers such an extensive period means that it encompasses a wide range of competencies, needs and rights. Rodolfo Albán Guevara reveals how Ibero-American countries are addressing older children’s rights through a progressive new Convention.
Bob Franklin argues that children should be entitled to citizenship rights like anyone else, and that excluding children from political decisions purely on the basis of age is discriminatory.
Adults' freedom of religion and belief is still tightly circumscribed in many parts of the world, so unsurprisingly, children face particular barriers in this area. Asma Jahangir provides some direction and points to how children might be supported to make informed choices. Meanwhile, Hossam Bahgat describes the advances that strategic litigation is achieving for freedom of religion in Egypt. Felix Corley highlights growing opposition in States across Central Asia towards children's participation in religious activities.
Debates around the minimum age of criminal responsibility are contentious even within the child rights community. At a time when many countries are lowering the minimum age of criminal responsibility, we asked Thandanani Ndlovu, who has first-hand experience of the justice system, for his thoughts on the debate. Sabrina Cajoly reveals the Council of Europe's plans to respond to some of these concerns through new guidelines that aim to make justice systems more appropriate for children.
Young people with disabilities in Sierra Leone John Conteh, Saidu Thoronka and Mariatu Bangura, emphasise that the only way to find out about young people's lives and capacities is to ask them. While they appreciate support, they are frustrated by adults' over-protective attitudes, which they feel exclude them from activities and decisions they are perfectly capable of participating in.
Gillian Calvert offers more evidence of age discrimination from Australia, which, ironically, has some of the most advanced legislation in the world intended to protect children from age discrimination. Unfortunately, she says, this does not apply to the labour market, where young people are being paid lower wages than adults for doing the same job.
Angela Melchiorre considers criteria to think about when establishing a minimum age of marriage, while Husnia Al-Kadri warns of the harm caused by young people taking on enormous responsibilities too early in life, which she has observed in her campaign work on early marriage in Yemen.
Research by Save the Children sheds light on the lives of young carers in sub-Saharan Africa, who have also been plunged into an adult world at an early age. While they demonstrate considerable capacity for making important decisions and supporting their household financially, damage may be done in the process, so strategies must be found to mitigate this.
In the previous CRIN Review, we described how children’s right to freedom of association is being curtailed in the UK and other European countries. In a follow-up, Ankie Vandekerckhove explains how Belgium is taking a stand.
Hard copies of the Review, formerly the CRIN Newsletter, will be sent to all CRIN members who have confirmed their acceptance of our new guidelines in the next few weeks. The Review will soon be available in French and Spanish.