their right to be heard either directly or through a representative, they must be presented with “the
opportunity to be directly heard in any proceedings.”33 In order for this right to be fully realized,
however, decision-makers must not only listen to what a child has to say, but also must give
“serious consideration [to the statements made by children] when making decisions.”34
States Parties to the CRC—and one could assert, based on the nearly universal
acceptance of the CRC, the international community—are obligated to ensure that children have
the opportunity to exercise their right to be heard.35 In fact, the international community seems to
have recognized that the protection of the right to be heard is especially important in instances
where children have witnessed or been the victims of crime.36
B. The Duty to Protect Children from Harm and How it Relates to the Right to be Heard
While it is of the utmost importance to promote participation opportunities for children,
“[p]romoting . . . participation without appropriate recognition of the potential risks involved,
may lay children open [to a number of harms, including, but not limited to,] harmful exposure in
the media, . . . punishment[,] retaliation,”37 and psychological harm. In fact, a substantial number
of children are plagued with fear and anxiety when testifying in criminal court.38 The stress
associated with testifying in a criminal trial has been linked to a number of factors, including:
“(1) the adversarial and formal nature of criminal courts; (2) direct-examination and, even more
so, cross-examination procedures; (3) facing the defendant; and (4) children’s general lack of
knowledge about the legal system.”39 Additionally, in instances of widespread human rights
abuses and conflict, children are often the victims of sexual abuse.40 In instances of sexual abuse,
choose whether or not [they] want to exercise [their] right to be heard” and that children “must not be manipulated or subjected to
undue pressure.” Id.
32 Gen. Cmt. No. 12, supra note 22, ¶ 21 (“The Committee emphasizes that [A]rticle 12 imposes no age limit on the right of the child
to express her or his views, and 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.”). Brems, supra note 26, at 19; Lansdown, supra note 20, at 12 (“By
requiring that attention is given to both age and maturity, Article 12 makes clear that age on its own should not be used to limit the
significance accorded to children’s views . . . . Considerable evidence exists to indicate that information, experience, social and
cultural expectations and levels of support all contribute to the development of children’s capacities.”).
33 Gen. Cmt. No. 12, supra note 22, ¶ 35. In making the determination of whether they want to be directly heard or communicate
through a representative, children must be made “aware of the possible consequences of th[eir] choice.” Id. ¶ 41. Additionally, should
a child determine that he or she wants to communicate through a representative, there need to be certain measures in place to ensure
that the representative is actually expressing the views of the child and not other individuals. Id. ¶¶ 36–37.
34 Lansdown, supra note 20, at 12.
35 Gen. Cmt. No. 12, supra note 22, ¶ 15; see also id. ¶ 19 (stating that Article 12(1)’s use of “shall assure” places “States [P]arties . . .
under [a] strict obligation to undertake appropriate measures to fully implement [the] right [to be heard] for all children”).
36 See, e.g., id. ¶¶ 62–64; see generally U.N. Econ. & Soc. Council Res. 2005/20, U.N. Doc. E/RES/2005/20 (July 22, 2005)
[hereinafter Resolution 2005/20] (“Guidelines on Justice in Matters involving Child Victims and Witnesses of Crimes”); U.N. Econ.
& Soc. Council, Commission on Crime Prevention and Criminal Justice, Implementation of the Guidelines on Justice in Matters
Involving Child Victims and Witnesses of Crime, E/CN.15/2008/11, (Jan. 2008) [hereinafter Implementation of 2005/20], available at
http://www.unodc.org/unodc/en/commissions/CCPCJ/session/17_Session_2008/CCPCJ_17.html (follow “pdf” hyperlink in the table
row for Document Number E/CN.15/2008/11).
37 Lansdown, supra note 20, at 19.
38 Natalie R. Troxel et al., Child Witnesses in Criminal Court, in CHILDREN AS VICTIMS, WITNESSES, AND OFFENDERS 150, 152 (Bette
L. Bottoms et al. eds, 2009); COUNCIL OF EUROPE, PROCEDURAL PROTECTIVE MEASURES FOR WITNESSES: TRAINING MANUAL FOR
LAW-ENFORCEMENT AGENCIES AND THE JUDICIARY 241 (2006) (noting that children may find interviews and other instances of
questioning to be stressful and that, for this reason, the basic principle that should be employed “is to take care not only of the
collection of evidence, but also of the child’s psychological welfare,” and to minimize the number of times that interviews are
conducted in a criminal investigation).
39 Troxel et al., supra note 38, at 153.
40 See, e.g., SAVE THE CHILDREN, HIDDEN SURVIVORS: SEXUAL VIOLENCE AGAINST CHILDREN IN CONFLICT 1 (2012), available at
http://www.savethechildren.org.uk/sites/default/files/images/Hidden_Survivors.pdf; Gema Palencia, The Youngest Victims of a
Weapon Without Ammunition, GUARDIAN (June 10, 2013, 10:20 AM), http://www.theguardian.com/global-development-