Article 5 CRC refers to the “evolving capacities” of the child. It provides that States Parties must respect the responsibilities, rights and duties of parents (or 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 child's evolving capacities, appropriate direction and guidance in the exercise by the child of the rights recognised in the CRC.

• Any interpretation that singles out one of the elements of article 5 while ignoring or discarding the other elements – for example, highlighting the rights of parents without also mentioning ‘appropriate direction and guidance’, ‘in the exercise of the rights recognized in the current Convention’ would be contrary to an accurate and holistic understanding of the article (Statement of the Committee on the Rights of the Child on article 5 of the Convention on the Rights of the Child, para 3)

The CRC Committee recalls the legal commitment from State Parties to recognise children as rights holders separately from their parents. Article 5 CRC articulates “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” (CRC GC 20, para. 18; see also CRC GC 25, para. 19).

In exercising their rights, children should receive appropriate direction and guidance from parents, as well as direct protection from the State, in cases where parents fail to provide adequate protection. Parents must exercise this direction and guidance keeping the best interests of the child as their basic concern (article 18 CRC), as well as considering the children's views.

The evolving capacities should be seen as a positive and enabling process, not an excuse for authoritarian practices that restrict children's autonomy and self-expression. Parents' responsibility needs to continually adjust the levels of support and guidance they offer, considering the child's interests, wishes, and capacities for autonomous decision-making and comprehension of their best interests. The more the child knows and understands, the more parents will have to transform direction and guidance into reminders and gradually to an exchange on an equal footing (CRC GC 20, para. 18).

Article 5 CRC should be read as a whole and consistently with the objective and purpose of the Convention, with no room for justification of violent, cruel or degrading forms of discipline. It establishes a direct relationship between the child and the State that challenges the presumption that parents have rights of ownership over the child. In doing so, the CRC renders the child visible as a subject of rights within the family, entitled to protection on their own behalf, and empowers the State to intervene, when necessary, to protect the rights of the child, in recognition that the best interests of children are not always protected by parents.

The right to exercise increasing levels of responsibility does not obviate States Parties’ obligations to guarantee protection (CRC GC 20, para. 19).

In the CRC, children’s evolving capacities is explicitly mentioned in relation to their right to freedom of thought, conscience and religion.

• Article 14(2) CRC: Parents (or legal guardians) have the right and duty to provide direction to the child in the exercise of their right to freedom of thought, conscience and religion, in a manner consistent with their evolving capacities.
• Children’s evolving capacities and development are also alluded to in different ways throughout the CRC.
  • E.g. Article 12(1): children who are capable of forming their own views have the right to express their views and to have them be given due weight in accordance with their age and maturity.
  • E.g. Article 29: children’s education should be directed to the development of their personality, talents and mental and physical abilities to their fullest potential (a).
  • E.g.: Article 31: children have the right to rest and leisure, and to engage in play and recreational activities appropriate to their age.
  • Provision of minimum age for employment (article 32), minimum age for participation in hostilities and recruitment (article 38; see also OPAC); minimum age of criminal responsibility (article 40(3)).

The CRC affirms the primary responsibility of parents for their children.

• The Preamble of the CRC upholds the family as “the fundamental group of society and the natural environment for the growth and well-being of all its members, and particularly children”.
• Article 18: parents have the primary responsibility for the upbringing and development of their children.
• Article 9: strict limitations on the State Party’s power to separate children from their parents.
• Article 10: obligations of States Parties in relation to family reunification.
• Article 18(2): States Parties must provide appropriate assistance for parents and legal guardians to perform their child-rearing responsibilities.

Parents’ right to guide their children is, however, not absolute but, rather, delimited by children’s status as rights holders and the ensuing necessity for the direction and guidance provided by parents and guardians to comply with certain parameters.

Specifically, appropriate direction and guidance must:

• Aim at enabling children to exercise their rights;
• Be consistent with all other provisions of the CRC;
• Act in the child’s best interests;
• Take the views of the child into account;
• Be consistent with the evolving capacities of the child;
• Promote non-discrimination and gender equality.

Source and for more information: Lansdown (2005)

Children of all ages should be given the opportunity to participate in the legislative reform process (article 12 CRC). Modalities for participation will differ depending on the child’s evolving capacities, and States Parties will have to take different measures to accommodate participation.

Where relevant and in a manner consistent with the child’s evolving capacities, parents or family members should be welcomed to guide and assist their children as participants in the legislative process (article 5 CRC).

Children’s rights legislation must recognise children’s evolving capacities in relation to the exercise and enjoyment of children’s rights and in relation to the role of parents and family. This can be done in different ways, using different terminology, including wording like “in a manner consistent with the evolving capacities” or “age and maturity”.

The CRC provides different examples of where the child’s evolving capacities play a role and this should be acknowledged in domestic legislation. (See Evolving capacities of the child and the role of parents above).

Specific provisions regarding respect for children’s evolving capacities should be introduced in legislation, including possibly in the Constitution.

Concerning the incorporation of the principles of evolving capacities of the child in legislation, different models could be identified and considered by States Parties.

This is a model that exists in the majority of States.

The law prescribes a broad range of age limits which include, but are not limited to, enrolment and attendance at school, sexual consent, marriage, consent to medical treatment, minimum age of employment, enrolment in the armed forces, age of criminal responsibility and the right to vote.

Despite the broad acceptance of this model, these prevailing legal frameworks rarely reflect a thoughtful assessment of children’s evolving capacities.

Instead, they indicate the economic and social priorities and needs of the State, as well as traditional assumptions about levels of necessary protection.

Further, their rigidity fails to comply with the principle of respecting the right of children to participate in decision-making in accordance with their evolving capacities.

They also fail to allow for flexibility depending on the levels of risk involved and the degree of protection needed.

Advantages of a Fixed Age-Limits Model

• Legal certainty. All citizens, adults and children have a clear understanding of when certain rights can be exercised.
• Explicit ‘rites of passage’ or benchmarks denote the process of growing up.
• Equality. The same rights extend to all children at the same ages.
• The model is relatively simple to understand and to implement.
• The potential for disagreement in the exercise of rights between children and parents is minimal.

Disadvantages of a Fixed Age-Limits Model

• The uniformity on the exercise of rights does not reflect children’s actual and differing capacities.
• The model is inflexible.
• It does not differentiate between rights that require universal protections and those dealing with personal, differentiated decisions affecting individual children.
• Age limits operating for different laws may be inconsistent.
• The model affirms a view of children as lacking in competence, rather than building on their potential, and tends to underestimate children’s capacities.
• It tends to exclude children (at least children below a certain age level) from decision-making, which may undermine the evolving capacities as an enabling concept.

In contrast to the fixed age limits model, another option for States Parties is to leave out or remove legal age limits.

Instead, individual assessments of children must be conducted to determine their capacity to participate in decision-making.

This approach is contrary to prevailing thinking and at odds with the CRC, which does propose the introduction of certain legal age limits in certain legal contexts (see e.g. article 40 (3) CRC on the administration of the child justice system).

However, it has been advocated by some child rights advocates as an alternative to the inflexibility of a fixed age limits model (UNICEF, 2005).

In the absence of fixed age limits, there are two possible approaches to determining competence.

• Burden of proof rests with the child to demonstrate competence. E.g.: before a child could make a decision relating to medical treatment, she or he would need to demonstrate a level of competence in understanding the nature of the proposed treatment, its implications and the alternatives available (see e.g. the ‘Gillick competence’ under English law and Australian law).
• Introduce a presumption of competence in the exercise of rights. The burden of proof would then lie with adults – such as a parent, teacher, doctor or judge – to demonstrate incapacity in order to restrict that exercise of rights.

Advantages of a No Legal Age Limits Model

• Allows each child to exercise rights in accordance with their individual level of competence.
• Challenges adult presumptions about the lack of competence in children and encourages a more respectful relationship between adults and children.
• Enables judgements about children’s capacities to reflect prevailing assumptions and experience, rather than legislation that may be outdated and out of touch.
• Prevents the use of age limits from excluding children on the basis of age alone.
• Eliminates the fixed inconsistencies that may exist within and between different parts of civil, criminal and administrative law.
• Encourages children to acquire skills and competencies and encourages adults to empower children.

Disadvantages of a No Legal Age Limits Model

• Significant administrative resources are required to assess individual children on a wide range of legal matters.
• Considerable knowledge and skills are needed to judge children’s individual capacities.
• Removal of clear age limits may result in legal uncertainty.
• Removal of clear age limits may result in some children failing to acquire certain rights.
• Contrasting assumptions and mechanisms of assessment can lead to inconsistencies in assessing competence. This is especially true where decision makers may be influenced by cultural prejudice and discrimination, in particular concerning girls, children from ethnic minorities and children with disabilities.
• Fails to acknowledge that some age limits are in place to protect children from abuse or exploitation by adults.
• Disagreements may arise between children and the State, and children and parents, as all decisions affecting children become discretionary to some extent.
• This may result in unclear and inconsistent demarcations of emerging adulthood.

This model combines fixed age limits and an automatic entitlement for children to exercise certain rights with a recognition that they may be able to exercise certain rights at an earlier point if they can prove the required capacity. E.g.: legislation might prescribe that a child’s consent is needed for an adoption from the age of 14 years. However, a child of 12 years would have the right to argue that her or his consent should be required before an adoption was to proceed.

This model would need to address questions of when the competence demonstrated by the child would be sufficient to justify a reduction in the age limit with respect to rights.

In those areas of law dealing with private matters – such as adoption, custody and access, choice of religion, medical consent and legal counselling – age limits could be reduced based on individual competence.

Advantages of a fixed age-limits with flexibility Model

• Protects children while also acknowledging the need for flexibility in the application of age limits.
• Considers that capacity in one area of a child’s life does not necessarily grant competence in all other areas.
• Provides legal guidelines but avoids the need for all children to be assessed with respect to the exercise of all rights.
• Provides a consistent basis for assessment of all children.
• Establishes patterns in children’s development associated with age, while recognising that individual children can and do vary significantly in their levels of understanding and competence.
• Allows children to demonstrate their evolving capacities and to have those capacities respected.

Disadvantages of a fixed age-limits with flexibility Model

• Where a fixed age limit applies, adults making decisions with respect to the child are unlikely to give sufficient consideration to the possibility of lower ages of competence.
• Children may not have access to avenues to challenge the denial of competence under a certain age limit.
• Considerable resources are required to assess specific capacities of individual children.
• Marginalised children are less likely to have access to opportunities to challenge legal age limits.
• A lower age limit with respect to certain rights may increase exposure to some forms of abuse and exploitation.

The mixed model is based on a combination of elements from the other models.

It encompasses both the right to protection and the right to participate in decision-making.

• Protection from self-harm or harmful social or economic factors. Where the exercise of the right might result in immediate and serious harm to self or others, a fixed non-negotiable age limit would be imposed. This would apply, for example, to recruitment into the armed forces, possession of arms, alcohol and tobacco, and driving a car.
• Protection from exploitation or abuse. Where the absence of an age limit exposes children to abuse or exploitation by adults – for example, sexual exploitation or child labour – a fixed age would be imposed irrespective of competence.
  • The purpose of the age limit would be to impose limitations on adult behaviour towards children, in recognition of children’s vulnerability to abuse and exploitation.
• Participation in personal decision-making. Wwhere the exercise of the right impacts only the child, but has both immediate and long-term implications, the child’s right to exercise choices would be determined based either competence or based on specific age limits.
  • This would apply, for example, concerning consent to medical treatment.
  • Where legislation provides age limits reflecting a presumption of competence, the onus would be on adults to demonstrate that a child was incompetent if the child’s decision was to be overruled.

Advantages of a mixed model differentiating between rights

• Protects areas of potential vulnerability, while recognising children’s evolving capacities to participate in day-to-day decision-making.
• Avoids over-reliance on prescribed age limits in personal decision-making and encourages serious consideration of children’s capabilities.
• Provides potential for greater respect for children’s capabilities.
• Provides flexibility and respects differences in children’s evolving capacities.
• Assessment of capacity of individual children could be limited to those adults with whom they have personal or professional relationships – e.g. parents, doctors and teachers.

Disadvantages of a mixed model differentiating between rights

• Without prescribed age limits, some children may experience difficulty in demonstrating capacity.
• Absence of age limits may be used by some parents or professionals either explicitly or by default to deny children the opportunity to exercise rights.
• Parents and professionals may receive insufficient guidance in determining the age at which children might be competent to exercise decision-making in key areas of their lives.
• The imposition of fixed age limits on certain rights in order to provide protection may be seen as limiting children’s opportunities to demonstrate capacity and take increased responsibilities for their lives.
• Significant divergence of views is likely with respect to the prescribed age limits, particularly between adults and children.

See UNICEF Innocenti Publication on Evolving Capacities for more information.