Convention on the Rights of the Child

Children’s rights

Children have long wondered why children didn’t get to know everything before something was decided and why the adults didn’t need to hear the opinions of children before making a decision that was in the best interest of the child. Many also wondered why the systems were designed in such a way that when a child had told something to an adult, the adults could just talk to each other as they wanted about this, without the children knowing. Some have asked why there are laws and guidelines in Norway that do not ensure that children can speak safely.

CF works extensively on children’s rights under the Convention on the Rights of the Child (CRC). We have a particular focus on some of the rights, which we call children’s rights in process. In short, these rights set out how adults in the systems should proceed when meeting children in order to find out what is best for the child in a given situation. The reason why we focus a lot on the process rights is because they largely correspond to the knowledge and advice from children about how adults in the systems should meet them in order to make actions, decisions and help safe and useful for them.

Knowledge from children asks adults to work closely with children. When something is to be done or decided:

children need understandable and useful information
children must be allowed to speak safely
children must be agreed with, if something is to be said further
decisions must be made in collaboration with the child

The procedural rights in the UN Convention on the Rights of the Child apply to all actions and decisions concerning the child:

Children have the right to sufficient and comprehensible information to express themselves (BK art 12)
Children have the right to speak freely and safely about matters that affect the child (BK art 12, Grl § 104)
Children have the right to respect for their privacy (BK art 16, ECHR art 8, Constitution § 102)

After these rights have been secured, the child’s best interests can be assessed (BK art.3, Grl § 104).
In the assessment of what is best for the child, the child’s own opinion must be a central factor .

What is the Convention on the Rights of the Child and what is its position in Norwegian law?

The UN Convention on the Rights of the Child gives all children under the age of 18 rights. Since 2003, the Convention on the Rights of the Child has been part of Norwegian law through Section 2 of the Human Rights Act. Section 3 of the Human Rights Act gives priority to the Convention on the Rights of the Child and the other human rights conventions. This means that if the special laws say something other than the Convention on the Rights of the Child, the Convention on the Rights of the Child must take precedence.

When the Constitution was revised in 2014, a separate chapter on human rights was included. In that connection, the Human Rights Committee pointed out that the general human rights provisions that were adopted and which apply to all people, including children, “do not fully take care of children’s special need for protection, their need for good development opportunities and their co-determination over their own lives”. The committee therefore believed that a separate provision on children’s rights in the Constitution would be an important supplement to the other rights provisions. This resulted in Section 104 of the Constitution, which today expresses the general main principles of the Convention on the Rights of the Child. This provision gives children’s rights special constitutional protection.

The Constitution is Norway’s supreme law. Seen in the context of the human rights conventions and other laws, it can be said that the Constitution stands supreme and sets the framework for all other legislation in Norway. Number two are the human rights conventions, including the Convention on the Rights of the Child. All other legislation is subordinate to the Constitution and human rights conventions.

The UN Children’s Committee prepares general comments (“General Comments”) on how the articles in the Convention on the Rights of the Child are to be interpreted and understood. In a number of cases, the Supreme Court has assumed that general comments from the Children’s Committee are a relevant source of law when the content of a right in the Convention on the Rights of the Child is to be determined. We therefore use the general comments to explain and elaborate on the content of the procedural rights.

Most people in Norway have heard of the Convention on the Rights of the Child. A number of professionals have learned about the child’s best interests and the child’s right to be heard. However, knowledge from children shows that children’s rights are not always secured in practice. One reason for this may be that professionals mainly relate to the special laws (for example the Education Act or the Child Protection Act) and do not necessarily know how the provisions of the Convention on the Rights of the Child are to be used in practice.

In addition, many special laws were made before 2003, and are thus only partially updated in line with the Convention on the Rights of the Child. We see insufficient use of the Convention on the Rights of the Child side by side, and in connection with the special legislation. This means that the systems for children do not know well enough what concrete significance the rights have for children in practice.

Changefactory is therefore working to ensure that procedural rights are included in the special laws regulating the systems for children. In addition, regulations and practices must be changed so that they are in line with children’s rights under the Convention on the Rights of the Child.

This is also in accordance with the state’s obligations under the Convention on the Rights of the Child, art. 4 on implementing all necessary measures to implement children’s human rights. When the knowledge from children shows that children’s rights are not adequately safeguarded today, the Norwegian authorities must do something to ensure this better. The state is also obliged to make the provisions of the Convention on the Rights of the Child known, both to adults and children according to the Convention on the Rights of the Child Art. 42.

What are, and when, children’s procedural rights for procedures / in processes?

The four rights must be understood and safeguarded in context. In order to be able to find out and conclude what is in the child’s best interest, the child must be allowed to speak freely about what is relevant, and the child’s opinion must be emphasized in the assessment. In order for the child to be able to express himself freely, the child must receive enough and good information. In addition, the child must know what happens to what the child tells.

One must think of the child’s best interests as the goal, and the other three rights as the method to achieve this goal. The rights are not sufficient on their own – they depend on each other to look after children in the best possible way.

The best interests of the child

The Convention on the Rights of the Child Article 3 No. 1 and the Constitution § 104 second paragraph

Convention on the Rights of the Child Article 3 No. 1
In all actions that affect children, whether they are carried out by public or private welfare organisations, courts, administrative authorities
or legislative bodies, the child’s best interests must be a fundamental consideration.

Section 104 second paragraph of the Constitution
In the case of actions and decisions affecting children, the child’s best interests must be a fundamental consideration.

Article 3 no. 1 of the Convention on the Rights of the Child states that the child’s best interests must be “a fundamental consideration” in “all actions affecting children”. The second paragraph of Section 104 of the Constitution is inspired by the Convention on the Rights of the Child and states that “in actions and decisions affecting children, the best interests of the child shall be a fundamental consideration”.

Both provisions state that the child’s best interests must be a fundamental consideration. This gives the state a strong and clear obligation, in that what is best for the child must be considered in all cases and decisions affecting children.

However, this does not mean that consideration of the child’s best interests is the only, nor always the decisive consideration in matters affecting children. The child’s best interests must also be assessed against other important interests in the specific case. The Supreme Court nevertheless emphasizes, with reference to the Children’s Committee’s statements, that “when weighing up other interests , consideration of the child’s best interests must have great weight – it is not just one of several elements in an overall assessment: the child’s interests must form the starting point, be highlighted in particular and stand in the foreground.”

In order for the decision to go towards what is best for the child, there must therefore be very good and important reasons for this. The assessment of this must be made specifically for each case.

Actions and decisions affecting children
The best interests of the child provision is meant to apply in ALL decisions and actions affecting children. Actions also means deeds, proposals, services or measures and much more. It also applies when it is decided not to take action, or adults fail to take an action. This could be, for example, when the Child Protection System fails to take action to protect children from violence.

The best interests of the child apply when actions “affect” one or more children, either directly or indirectly. The word “touches” is a broad term that encompasses many things. For example, the best interests of the child also apply when measures are initiated where the children are not the target, but which nevertheless have an effect on them.

The extent to which an action or decision affects the child can, however, have an impact on how much weight the consideration of the child’s best interests should be given in a case.

The child’s best interests have three sides
The provisions on the best interests of the child have three sides:

Independent right
Principle of interpretation
Procedural rule

Independent right
The fact that the best interests of the child is an independent right means that it is a right that every individual child has. Every time a decision is made or an action is taken that affects a child, consideration of the child’s best interests must be considered. Norway is obliged to ensure this right for all children.

Principle of interpretation
That it is an interpretation principle means that it must be used in the understanding and interpretation of other laws and regulations. For example, if it is uncertain what a law or rule actually means in practice, then you must choose the meaning that is best for the child.

Procedural rule
The best interests of the child is also a procedural rule, which means that when decisions are made that affect one or more children, the best interests of the child must be considered. The consequences of the decision for the child, whether these are in the child’s best interests and how much weight the child’s best interests are given, must be justified.

In other words, the child’s best interests are both a goal in itself, and decisive for how to proceed in the process of all actions that affect children. The child’s best interests are not only an interpretative principle and a right that is realized when it is to be concluded or decided in an action affecting children, but it is also a fundamental consideration in the procedure/assessments/case management/process that leads to the final decision. What is in the child’s best interest must therefore be assessed at all stages of an action that affects the child, from beginning to end. It must be clearly stated in any decision or decision how the child’s best interests have been assessed.

How to assess what is in the best interests of the child?
What is best for the child must be assessed concretely in each individual case. In general comment no. 14, the children’s committee sets out a number of points that can be included in the assessment: The child’s views, identity, family relationships and ongoing relationships, care, protection and safety, vulnerability and the child’s right to health and education.

The most important element in the child’s best interests assessment is the child’s own views, cf. the Convention on the Rights of the Child, art. 12 and Grl. Section 104 first paragraph. In general comment no. 12 point 74, the Children’s Committee comments on the connection between the best interests of the child and the right to speak freely:

“…there is no contradictory relationship between Article 3 (the best interests of the child) and Article 12 (the child’s right to express himself freely), only a complementary relationship between the two general principles: One states that the best interests of the child shall be the goal, and the others present the procedure for achieving this goal, which consists in listening to the child or children. Article 3 cannot actually be implemented correctly without the components of Article 12 being respected. Likewise, Article 3 reinforces the functionality of Article 12, and makes it easier for children to play an important role in all decision-making processes that affect their lives.”

In HR-2021-475-A section 62, the Supreme Court also writes that the child’s opinion: “includes as a central element in the determination of which solution will be the best for the child”.

The Children’s Committee also points out that “Any decision that does not take into account the views of the child or does not give their views due weight in accordance with their age and maturity, does not respect the opportunity for the child or children to be allowed to influence the determination of their best interests.” Furthermore, in section 54, it is specified that conditions such as the child being very young or in vulnerable situations, for example due to a disability, do NOT deprive them of the right to express themselves freely, and their opinion shall not be given less weight in the assessment of what is best for the child.

The child’s right to speak freely

(The Convention on the Rights of the Child Article 12 and the Constitution § 104 first paragraph)

Article 12 of the Convention on the Rights of the Child
1. The parties must guarantee a child who is able to form his own views, the right to freely express these views in all circumstances that
concerns the child, and give due weight to the child’s views in accordance with the child’s age and maturity.
2. For this purpose, the child shall in particular be given the opportunity to be heard in any legal and administrative proceedings concerning the child, either directly
or through a representative or a suitable body, in a manner that is consistent with the procedural rules of national law.

Section 104 of the Constitution, first paragraph, second sentence
They have the right to be heard in matters concerning themselves, and their opinion shall be given weight in accordance with their age and development.

Article 12 of the Convention on the Rights of the Child states that children who are able to form their own views have the right to express these views freely in all matters concerning the child. Section 104 first paragraph of the Constitution states that children have the right to be heard in matters that concern them. In other words, these provisions give children the right to express themselves freely . Children often call this “talking safely”.

The word “affects” must be interpreted broadly and it is enough that it affects the child in one way or another. The starting point is that children should be given the opportunity to express themselves in all matters that concern them and that no exceptions can be made to this. Children thus have a right to express themselves, but not an obligation. Parents or other adults cannot restrict children’s right to express themselves freely.

The child’s right to express himself freely and to be heard according to Art. 12 is one of the general principles of the Convention on the Rights of the Child. This means that it is both a right in itself, but that it must also be used in connection with the other rights in the convention.

No age limit
There is no age limit for when the child must be heard; the key is whether the child is able to express himself freely about the question. The UN Children’s Committee emphasizes that the state has a duty to examine the child’s ability to express his opinion, and that expressing himself can take place in many ways. Some children will be able to express themselves orally by talking, while others, such as those without spoken language, can express themselves through body language. It is not sufficient to observe or interpret what a child means based on their behavior or expression alone.

What does it mean to speak freely (safely)

In order for the child to be able to express himself “freely”, it must be arranged to the best possible extent so that the child actually has the opportunity to express his opinion. This means, among other things, that the child should not be exposed to pressure or influence, and that it is the child himself who chooses whether he wants to speak out or not.

Furthermore, the responsible adults must ensure that it is safe enough for the child to express himself, including by providing a safe environment, which is positive and encouraging for the child. The point is that the child should feel respected and safe, and that the child feels that whoever hears the child listens and takes the child seriously. Here, everyone who works with children has a special responsibility to ensure that the child gets to talk to someone they say they feel safe with, and in an environment that feels safe.

In addition, the child must receive enough and comprehensible information to be able to express what he thinks is best for him (read more about this under Right to information ) and they must know what happens to what they say (read more about this under The right to privacy ).

How much importance the child’s opinion should have

Convention on the Rights of the Child art. 12 states that the child’s opinion must be given “due weight in accordance with its age and maturity” and Grl. Section 104 states that their opinion must be “given weight in accordance with their age and development”. It is therefore not enough to listen to the child, but his opinion must be taken seriously and emphasized in the decision.

The Children’s Committee emphasizes that the child’s maturity must be concretely assessed in each case. It is the child’s ability to express his opinion in a sensible and independent way that is decisive; not the child’s age. In addition, it is pointed out that the greater the impact the question has on the child’s life, the more the child’s opinion must be emphasized when the question in question is to be decided.

The Children’s Law Committee wrote about this in NOU 2020:14 section 10.3.5.3.2:

“However, the committee would warn against thinking that the opinions of an older child are automatically more important than the opinions of a younger child. Younger children can have both strong and well-founded opinions on issues that mean a lot to them, and which must therefore be weighed against other considerations in the matter.”

Species. 12 is closely related to art. 3 on the best interests of the child. The UN Committee on Children describes it as the best interests of the child being the ultimate goal, while art. 12 says something about the procedure for achieving this. In HR-2021-475-A it is stated that the child’s own opinion must be a central factor in the assessment of what is best for the child.

The child’s right to express himself freely is the key to achieving the goal of the child’s best interests and thus the fulfillment of a number of other rights, such as good health care, good education and protection against violence, abuse and harmful care situations.

In summary, the child’s right to speak freely entails a duty to ensure that the child:

get useful and understandable information,
may speak without influence, pressure or manipulation and without the consent of a guardian,
feel safe and respected, and
gets to know what happens with what the child says.

The child’s right to information

Follows implicitly from the Convention on the Rights of the Child Article 12, cf. General Comment No. 12 Sections 16, 25 and 41

General Comment No. 12
16. The parties must ensure that the child receives all the information and guidance he or she needs in order to make a decision that is in his or her best interests.
25. A realization of the child’s right to express his views requires that those responsible for hearing the child, and the child’s parents or
guardian, informs the child about the matters, about the choices and any decisions that must be made, and about the consequences of these. The child must too
is briefed on the situation in which he or she will be asked to express his or her views. This right to information is essential, because it is a
prerequisite for the child to be able to make clear decisions.

Article 12 of the Convention on the Rights of the Child and § 104 of the Constitution state that the child has the right to express himself freely. This right presupposes that the child must receive all the information he needs to be able to express himself freely and form his own views. The child’s right to good and adequate information is highlighted by the UN Children’s Committee in general comment no. 12 section 25, where it is pointed out that the right to information is an absolutely necessary prerequisite for the child to be able to express himself freely and be able to decide what is best for him even in the situation.

All children basically have the right to information and there are very few exceptions to this. The right applies regardless of the child’s age and parents or other adults cannot restrict this right.

The right is very important, because without enough information the child cannot know what possibilities exist and assess what is best for him in the current situation. In other words, the child will not have the opportunity to express himself on a truly informed basis, and it will therefore also be difficult for professionals to determine what is in the child’s best interest in the individual case.

The information must be given in an understandable and considerate way, it must be repeated when needed. If there is new information, the child must be made aware of this.

The child must be informed about, among other things

The case / situation
What information do the adults have and from whom
Which choices and decisions can/must be taken
What options are available in the current situation
What consequences can these choices have – what will happen afterwards
That the adults must make it easy for the child to express themselves freely by making it safe and respectful
What happens/can happen with what the child tells

The child’s right to respect for his privacy

Article 16 of the Convention on the Rights of the Child, § 102 of the Constitution, Article 8 of the ECHR and Article 17 of the European Convention on the Rights of the Child

Article 16 of the Convention on the Rights of the Child
No child shall be subjected to arbitrary or unlawful interference with his privacy , his family, his home or his correspondence, or to unlawful attacks
against his honor or his reputation.

The child has the right to the protection of the law against such interference or such attacks.

ECHR Article 8: The right to respect for private life and family life
Everyone has the right to respect for their private and family life, their home and their correspondence.

There shall be no intervention by public authorities in the exercise of this right, except when this is in accordance with the law and is necessary in a
democratic society for reasons of national security, public safety or the country’s economic welfare, to prevent disorder or
crime, to protect health or morals, or to protect the rights and freedoms of others.

Section 102 of the Constitution
Everyone has the right to respect for their privacy and family life, their home and their communication. House searches must not take place, except in criminal cases.

The national authorities must ensure protection of personal integrity .

See also SP art. 17 and Grl. Section 104

What right to privacy means
In the Convention on the Rights of the Child, art. 16 states that children have the right to protection against illegal interference in their privacy. In § 102 of the Constitution and ECM art. 8 states that everyone has the right to respect for their privacy. The Constitution and the ECHR apply to all people, including children. The provision in the Constitution was introduced in 2014 and is based on the ECHR.

The term “privacy” is a broad term and the Supreme Court says there is no exhaustive definition of what privacy is. The central thing is nevertheless “the person’s physical and psychological integrity, all the various elements of the individual’s identity in the broadest sense, and personal autonomy”. It also includes the protection of personal data.

General Comment No. 20, paragraph 46, states that the right to privacy gives “young people the right to access their records in school, health care, childcare, the Child Protection System and justice systems”. Furthermore, the Committee on the Rights of the Child states that this right becomes more important during adolescence. The child’s right to privacy will be strengthened as the child grows older and more mature. This means that the parents’ right to make decisions in relation to the child is reduced at the same time.

In general comment No. 20 paragraph 46, the Children’s Committee says that they have repeatedly “expressed concern about the violation of privacy, for example, when it comes to confidential medical advice; the place and assets of young people in institutions; correspondence and other communication, either in the family or during other forms of care…”.

Sharing of information about the child
Part of the child’s right to respect for their privacy concerns whether information from or about the child can be shared with other professionals, services or parents, and that children should be told what happens to what they say.

The starting point is that children have the right to respect for their privacy, so that information from or about the child cannot automatically be shared with other professionals, services or parents. In Norwegian special laws, this is often regulated as a duty of confidentiality, for example in section 13 of the Public Administration Act. Children must be protected against both illegal and arbitrary/unnecessary interference in their privacy. The expression “illegal” means that invasion of privacy can only take place if there is a legal basis for it. In other words, it must be stated in a law that such an intervention can be made. With “arbitrary” and “necessary” it is required that the intervention must be reasonable/necessary and not random or discriminatory.

This does not mean that others should never get, or never have the right to get, information about the child where it is necessary. But in order to make exceptions to the general rule, the following must be considered:

Authority in law: In order for professionals to be able to share information or information from the child with other adults, there must therefore be authority in law for such sharing. The child’s right to privacy thus borders on both confidentiality and privacy on the one hand, and other professionals/services or the parents’ right to information on the other.
Necessary/reasonable: It must also be assessed what is reasonable/necessary to share. Since sharing is an intrusion into the child’s right to privacy, only the information that is necessary can be shared and this must not be done arbitrarily.
Best interests of the child: Sharing information from or about the child is an act that “affects the child”. This means that the child must receive information about this and the opportunity to speak freely about the division first (BK art. 12). In the decision whether information is to be shared and possibly what, the best interests of the child must be a fundamental consideration (BK art. 3).

The most important thing is that children’s rights are secured in the process, so that the child receives information if information is to be shared further and is allowed to express himself freely about this sharing. When it is to be assessed whether sharing is in accordance with the law, necessary and in the best interests of the child, the child’s statements must be emphasized.