The Government has now announced that it will hold its long-awaited children’s rights referendum in the 
autumn. We have yet to see the wording, but it is certain that the term “best interest of the child” will be included.
A number of legal authorities have suggested that this term, unless express limitations are set down on it, could easily give the State too much power in respect of the family. Who decides what’s in a child’s ‘best interests’; parents or the State?
The term is used in the UN’s Convention on the Rights of the Child. The UN’s monitoring body for this treaty is the Committee on the Rights of the Child. However, its approach to the issue is deeply disturbing.
In 2009, it issued a “General Comment [1]”, to help interpret the Convention. It contained some very worrying interpretations of the treaty.
Overall, its approach is to stress the autonomy of the child, to treat children almost as mini-adults, and de-emphasise the position of the parent.
Parents, in its view, are there almost solely to facilitate a radical view of child autonomy.
It says: “The Convention recognizes the rights and responsibilities of parents, or other legal guardians, to provide appropriate direction and guidance to their children (see para. 84 above), but underlines that this is to enable the child to exercise his or her rights and requires that direction and guidance are undertaken in a manner consistent with the evolving capacities of the child.”
This begs certain questions, including, what rights, and who decides when a child’s capacities are sufficiently evolved?
For example, is a six year old, old enough to read what they want, watch what they want, befriend whoever they like? What about a ten year old or a 14 year old? And who decides when they’re old enough to do these things? If it is the State, then the State has effectively become the parent of every child.
Not only does the General Comment counsel parents that their primary role is to “facilitate children to exercise their rights” it also tells signatories to the Convention that should make policy to “encourage” parents to see their role in this light.
It says: “States parties should encourage, through legislation and policy, parents, guardians and childminders to listen to children and give due weight to their views in matters that concern them. Parents should also be advised to support children in realizing the right to express their views freely and to have children’s views duly taken into account at all levels of society.
“In order to support the development of parenting styles respecting the child’s right to be heard, the Committee recommends that States parties promote parent education programmes, which build on existing positive behaviours and attitudes and disseminate information on the rights of children and parents enshrined in the Convention.”
In terms of the age at which these expression rights should kick in, the Committee takes a radical view: Apparently even children who can’t yet talk have a right to be consulted.
“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.”
States parties, the Committee goes on “should presume that a child has the capacity to form her or his own views and recognise 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 “discourages States parties from introducing age limits either in law or in practice which would restrict the child’s right to be heard in all matters affecting her or him”.
It adds: “First, in its recommendations following the day of general discussion on implementing child rights in early childhood in 2004, the Committee underlined that the concept of the child as rights holder is ‘… anchored in the child’s daily life from the earliest stage’.
“Research shows that the child is able to form views from the youngest age, even when she or he may be unable to express them verbally.
“Consequently, full implementation of article 12 requires recognition of, and respect for, non-verbal forms of communication including play, body language, facial expressions, and drawing and painting, through which very young children demonstrate understanding, choices and preferences.”
Ireland is a signatory to the Convention, although we are not legally bound by the interpretations of the Committee on the Rights of the Child. But we should be aware that, when it comes to the issue of children’s rights, the ideas coming from the UN are not always benign.