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

3. Evolving capacity

Evolving capacity is a term which is not defined in the UNCRC but is referred to in two articles within the UNCRC, Article 5 and Article 14(2) and may also be important in relation to Article 12. The CRC defines this term in General Comment No.20 as “an enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding and increasing levels of agency to take responsibility and exercise their rights”.

‘Evolving capacities’ is therefore a term used to refer to the child’s own increasing ability to make reasoned decisions in different parts of their life. In What are evolving capacities? The Children and Young People’s Commissioner Scotland explains that a child’s capacity develops gradually, and in different ways. It may depend on a child's experiences, education and maturity, as well as the complexity and magnitude of the decision being made.

The UNCRC recognises that children in different environments and cultures who are faced with diverse life experiences and circumstances will acquire competencies at different ages. Some children may face additional barriers to participation and communicating with public authorities on decisions that affect them, such as children with additional support needs or speakers of other languages. The UNCRC also allows for the fact that children’s capacities can differ according to the nature of the rights to be exercised. Therefore, children require varying degrees of protection, participation and opportunity for autonomous decision-making in different contexts and across different areas of decision-making.

The full text of Article 5 states:

“States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention”.

The concept of evolving capacities within international law is central to the balance embodied in the UNCRC between recognising children as active agents in their own lives, who are entitled to be listened to, respected and granted increasing autonomy in the exercise of their rights, while also being entitled to protection in accordance with their level of maturity and youth. As The evolving capacities of the child (2005) by Gerison Lansdown explains: “This concept provides the basis for an appropriate respect for children’s agency without exposing them prematurely to the full responsibilities normally associated with adulthood”. However, it is important to note that the concept is different from legal capacity, which in Scotland is defined through the Age of Legal Capacity (Scotland) Act 1991 and which sets out the specific provisions for persons under the age of 18 in regard to their legal capacity.

Guidance from the CRC in the form of General Comments No.7 and No.20 provide useful information about the rights of the child in early childhood and during adolescence, respectively. When a child is younger, they may need more protection, as they may be more likely to make choices without considering or understanding the consequences. However, in General Comment No.7 (paragraph 14. (a))“The Committee encourages States parties to take all appropriate measures to ensure that the concept of the child as rights holder with freedom to express views and the right to be consulted in matters that affect him or her is implemented from the earliest stage in ways appropriate to the child’s capacities, best interests, and rights to protection from harmful experiences.”

As a child develops into adolescence, the parents or other persons legally responsible for the child, need to fulfil with care their obligation to provide appropriate direction and guidance in accordance with the evolving capacities of the child. General Comment No.20 states that, “the more a child knows and understands, the more his or her parents will have to transform direction and guidance into reminders and gradually to an exchange on an equal footing.”

The concept of evolving capacities applies to all UNCRC rights, including Article 14 which specifically covers a child’s right to freedom of thought, religion and conscience. Article 14(2) states that, “States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child”.

The concept of evolving capacities will be important with regards to Article 12 of the UNCRC. It states that “State 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”. This recognises the importance of considering the views of children in matters affecting them and that they should be taken seriously in accordance with their evolving capacities. The concept of evolving capacities should never be used to dismiss a child’s view. Adults can ensure they have a better idea of what’s important to the child by taking into account children’s views.