United Nations Convention on the Rights of the Child (UNCRC): clarification of inherent obligations

2. Four general principles of the UNCRC

There are four articles in the UNCRC which are known as the ‘General Principles’. These underpin all the other articles and can play a fundamental role in realising the rights in the UNCRC for all children. These are also useful when considering how to give practical effect to taking a children’s human rights approach. The General Principles include:

• non-discrimination (Article 2)
• best interests of the child (Article 3)
• right to life, survival, and development (Article 6)
• right to express a view (Article 12)

Children’s civil, political, economic, social and cultural rights are expressed within the first 42 articles of the UNCRC, and all articles have equal status. Therefore, whilst the General Principles are a useful lens through which to consider the rights of children, they should not be considered paramount or imply a hierarchy of rights.

Considered together, the General Principles help to construct a perception of children and childhood, one where they are equal to their adult counterparts. The General Principles contribute to the enhancement of a positive attitude towards children and their rights.

Article 2: Non-discrimination

The obligation to provide all children with equal access to their rights is expressed in Article 2 which states:

1. “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”

It should be noted that this article places a duty on State Parties to “respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind”. Some children will require more support to access their rights than others. This will include children whose rights are at risk, including but not limited to: female children; disabled children; minority ethnic children, particularly Gypsy/Traveller children; children living in poverty (including those with entitlement to free school meals); LGBTI children; children with care experience or ‘on the edge of care’; children with a parent/carer in the armed forces; child migrants, asylum‑seekers and refugees; children at risk of significant harm, with a child protection plan; children with additional support needs; children (and/or their parents) who are experiencing poor physical or mental health; children experiencing disadvantages, particularly problem alcohol or drug use amongst family members, domestic abuse or bereavement; children who require support at times of key transitions and children in the justice system or in conflict with the law; and children affected by parental imprisonment.

Article 3: Best interests of the child

Article 3 states that:

1. “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”

The best interests principle and its interpretation is explained in General Comment No.14 which defines it as a threefold concept:

1. As a right. This refers to the right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake. This should also translate into a guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general.

2. As a principle. If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the UNCRC and its Optional Protocols provide the framework for such an interpretation.

3. As a rule of procedure. Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. (More information is available in the 2021 UN High Commissioner for Best Interests Procedure Guidelines.) Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision should show that the right has been explicitly taken into account. This may take the form of showing how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases.

It may also be useful for public authorities to consider how this article applies in relation to issues not directly related to the provision of services to children, as children’s interests may be affected by decisions and activities that are not ostensibly ‘about’ them in the first instance.

Article 6: Right to life, survival and development

Article 6 states that:

1. “States Parties recognize that every child has the inherent right to life.

2. States Parties shall ensure to the maximum extent possible the survival and development of the child.”

General Comment No.36 clarifies that Article 6 of the International Covenant on Civil and Political Rights protects the right to life for all people. “The right to life is the supreme right from which no derogation is permitted, even in situations of armed conflict and other public emergencies that threaten the life of the nation.” Article 6 of the UNCRC builds on this to include that all children must be supported in their development.

UNCRC articles are indivisible and should be read in conjunction with the Guiding Principles and substantive rights within the UNCRC. In relation to the right to survival and development, General Comment No.7 explains that this can only be implemented in a holistic manner, through the enforcement of all other provisions of the UNCRC, including “rights to health, adequate nutrition, social security, an adequate standard of living, a healthy and safe environment, education and play” (articles 24, 27, 28, 29 and 31). The right to ‘development’ in this context is not defined in the UNCRC but the Committee on the Rights of the Child (CRC) has stated in General Comment No.5 that States Parties to the UNCRC should interpret the term as a “holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development”.

Article 12: Right to express a view

Article 12 states that:

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.”

General Comment No.12 clarifies that this article should be understood as the right of children to participation. It addresses issues pertaining to the social and legal status of the child, seeking to ensure that children are firstly able to express their opinions on matters that affect them, and secondly, for those children who are capable of forming their own views, to have these views given due weight in accordance with the age and maturity of the child. General Comment No.12 points out that the expression of views generally forms part of “ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes”. The concept of participation is understood as the inclusion of children in decision-making being the starting point for an exchange between children and those responsible for the development of policies, programmes and measures in all relevant contexts of children’s lives.

Full implementation of Article 12 could require recognition of, and respect for, non‑verbal forms of communication including play, body language, facial expressions, and drawing and painting, through which non‑verbal children, including very young children, demonstrate understanding, choices and preferences.

General Comments provide detailed guidance on implementing Article 12 in specific contexts and for certain groups of children. For example:

• Adolescents ( General Comment No.4 and General Comment No.20)
• Asylum-seeking and unaccompanied children (General Comment No.6, General Comment No.22 and General Comment No.23)
• Babies and young children (General Comment No.7)
• Disabled children (General Comment No.9)
• Indigenous children (General Comment No.11)
• Children affected by violence (General Comment No.13)
• Children in the justice system (General Comment No.24)
• Children affected by climate change (General Comment No.26)

The Implementation Handbook for the Convention on the Rights of the Child stresses the importance of a wide interpretation of Article 12, including the phrase “in all matters affecting the child.” It explains that in the initial working group drafting the provision, the group considered a list of matters affecting the child and decided matters “should not be subject to the limits of a list, and therefore the list ought to be deleted”.

In complying with their duties under the Children and Young People (Scotland) Act 2014, Scottish Ministers must take such account as they consider appropriate of any relevant views of children of which the Scottish Ministers are aware. General Comment No.12 gives more information about this article, including in specific types of decisions such as separation of parents, custody, care and adoption and health care. In General Comment No.12, the CRC makes a distinction between the right to be heard as an individual child and the right to be heard as applied to a group of children (e.g. a class of schoolchildren, the children in a neighbourhood, the children of a country, children with disabilities, or girls).

Paragraph 2 of Article 12 refers to the right, in particular, for children to be heard in any judicial and administrative proceedings affecting them, either directly or through a representative or appropriate body, in a manner consistent with the procedural rules of national law. The CRC emphasises that this provision applies to all relevant judicial proceedings affecting the child, without limitation, including, for example, separation of parents, custody, care and adoption, children in conflict with the law, child victims of physical or psychological violence, sexual abuse or other crimes, health care, social security, amongst others. Typical administrative proceedings include, for example, decisions about children’s education, health, environment, living conditions, or protection.