children may be even more reticent to share their opinions, as they “fear . . . reprisal from the
perpetrator, embarrassment, or lack of power within the system.”41
The above realizations have contributed to the duty to protect children being inextricably
linked to the right to be heard and balanced against that right. The international community has
repeatedly recognized the interrelationship between the right to be heard and the duty to protect42
and noted that “a higher duty of care” is owed to children when affording them the right to
participate than is owed to adults.43
The CRC acknowledges this need for balancing in Article 3, which requires that the
actions taken by “courts . . . , administrative authorities,” and other public and private bodies be
in “the best interests of the child.”44 Article 3 states:
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 well-being, 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.45
The Committee on the Rights of the Child discussed the interrelationship between
Articles 12 and 3 of the CRC in General Comment No. 12. In the Comment, the Committee noted
“that every action taken on behalf of the child has to respect the best interests of the child” and
that “there is no tension between article 3 and 12.”46 Rather, the Committee regards the right to be
heard and the requirement that the best interests of the child be taken into consideration as
complementary,47 fundamental principles of the CRC.48 Particularly in instances where children
have been witnesses or the victims of crime, the Committee has recognized that the right to be
heard needs to be provided in a careful and considerate manner in order to provide children
protection and prevent retraumatization.49 In General Comment No. 12, the Committee on the
Rights of the Child aptly addressed the importance of respecting the child’s right to be heard
41 Bussey, supra note 1, at 212; see also ABIGAIL ERIKSON ET AL., INT’L RESCUE COMM., CARING FOR CHILD SURVIVORS OF SEXUAL
ABUSE: GUIDELINES FOR HEALTH AND PSYCHOSOCIAL SERVICE PROVIDERS IN HUMANITARIAN SETTINGS 27 (2012), available at
http://www.unicef.org/pacificislands/IRC_CCSGuide_FullGuide_lowres.pdf.
42 See generally Resolution 2005/20, supra note 36; Implementation of 2005/20, supra note 36; Gen. Cmt. No. 12, supra note 22.
43 Lansdown, supra note 20, at 18.
44 CRC, supra note 2, at art. 3(1). In fact, the best interests of the child and child participation in judicial and administrative
proceedings have been viewed as interrelated from the outset of the CRC’s drafting process. This can be seen in Article 3(1) of the
original working text, which read: “[ i]n all actions concerning children, whether undertaken by their parents, guardian, social or State
institutions, and in particular by courts of law and administrative authorities, the best interests of the child shall be the paramount
consideration.” HOLZSCHEITER, supra note 27, at 171.
45 CRC, supra note 2, at art. 3(1)–(2).
46 Gen. Cmt. No. 12, supra note 22, ¶¶ 70, 74.
47 Id. ¶ 74. In discussing the way that articles 3 and 12 reinforce each other, the Committee notes: “[T]here can be no correct
application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12,
facilitating the essential role of children in all decisions affecting their lives.” Id.
48 See id. ¶ 2 (noting that the right to be heard and consideration of the best interest of the child are two of the four underlying
principles of the CRC).
49 Id. ¶ 21. (“States [P]arties must be aware of the potential negative consequences of an inconsiderate practice of this right,
particularly in cases involving very young children, or in instances where the child has been a victim of a criminal offense, sexual
abuse, violence, or other forms of maltreatment. States [P]arties must undertake all necessary measures to ensure the right to be heard
is exercised ensuring full protection of the child.”).
