States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, 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 evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
-UN Convention on the Rights of the Child
Overview of Article 5
Article 5 is a unique provision in international human rights law, introducing for the first time a triangular relationship of responsibilities and accountabilities between the child, the child’s parents or caregivers and the State [1]. It underwent radical transformation during the CRC drafting process. The original Polish draft contained no provision addressing the issues addressed in Article 5 [2]. Subsequent proposals were put forward to introduce a focus on the autonomy of the family and respect for their rights and responsibilities, reflecting existing provisions in other treaties[1] [2]. However, further debate highlighted the imperative for a clearer focus on the rights of the child and led to the introduction of recognition that parents’ rights and duties must reflect and be provided in accordance with the child’s right and their evolving capacities. In other words, the exercise of parental responsibilities must reflect the gradual capacity of the child to take increasing responsibilities themselves [3]. Parental guidance, accordingly, must be appropriate, and directed towards the exercise by the child of the rights contained in the CRC. The inclusion of this provision, while maintaining recognition of the right of parents to protection from arbitrary interference from the State, also places boundaries on the family having arbitrary control over the child [2]. It thereby affords the State a role in protecting the child in line with the rights embodied in the CRC.
The concept of evolving capacities introduces a framework for recognition that the CRC, in its entirety, obliges States create an environment to ensure [4]:
- Respect for the child’s evolving capacities, recognising the child as a subject of rights, with gradual and increasing agency in exercising those rights for themselves;
- Protection of the child from exposure to risks inappropriate to their level of capacity;
- Fulfilment of the child’s optimum capacities.
[1] Articles 18 and 23, International Covenant on Civil and Political Rights; Article 10, Committee on Economic, Social and Cultural Rights.
Core attributes of Article 5
The core attributes of Article 5 are:
- Respect for the primacy of parents and comparable care givers
- Appropriate direction and guidance
- Evolving capacities of the child
Each of these attributes can be measured in terms of structural or process implementation or in terms of outcomes achieved through implementation as outlined in the table below. Some indicators, for instance the structural ones, may be common to all attributes. Others are common to two or more attributes, while some indicators may be relevant to one attribute only. An attempt has been made to balance the use of objective and subjective data indicators as well as qualitative and quantitative ones.
What did children say?
These are some ideas that children from around the world shared with us during the Global Child Rights Dialogue (GCRD) project:
Relevant provisions within the SDGs
No relevant SDGs provisions have been identified for this article.
Potential sources of data for users of the indicators sets
- Court data
- Government departments, universities and other training institutions
- Human rights institutions
- Impact evaluations of trainings for professionals
- Independent Children’s right commissioner offices
- National legislation on family law
- Nationally accredited professional training programmes for all disciplines specified
- Surveys of parents on knowledge of their responsibilities as parents and the right of the child
- UNICEF MICS data
- University or NGO qualitative research with children on their knowledge of and experience in the exercise of their rights
References used for the overview
- Vuckovic Sahovic, S., Doek, J.E. & Zermatten, J. (2012). The rights of the child in international law. Rights of the child in a nutshell and in context: all about children’s rights (1st ed., pp. 155-164). Berne, Switzerland: Stampfli Verlag AG.
- Office of the United Nations High Commissioner for Human Rights. (2007). Legislative History of the Convention on the Rights of the Child. (Vol. 2, pp. 357-359). New York, United States of America and Geneva, Switzerland: United Nations. Retrieved from https://www.ohchr.org/Documents/Publications/LegislativeHistorycrc2en.pdf
- United Nations Committee on the Rights of the Child. (2009). General Comment No.12, The Right of the Child to be Heard (CRC/C/GC/12), (para. 84-85). Retrieved from https://www.refworld.org/docid/4ae562c52.html
- Lansdown G. (2005). The Evolving Capacities of the Child (p. 15). UNICEF Innocenti Insights No.11. Retrieved from https://www.unicef-irc.org/publications/384-the-evolving-capacities-of-the-child.html
References used to create indicators
- Anderson Moore, K., Lippman, L.H. & McIntosh, H. (2009). Positive indicators of child well-being: A conceptual framework, measures and methodological issues. Innocenti Research Centre, Working Papers No.2009-21. Retrieved from https://www.unicef-irc.org/publications/580-positive-indicators-of-child-well-being-a-conceptual-framework-measures-and-methodological.html
- Fundamental Rights Agency, European Union Agency For Fundamental Rights. (2010). Developing indicators for the protection, respect and promotion of the rights of the child in the European Union (Conference Edition). Retrieved from https://fra.europa.eu/en/publication/2012/developing-indicators-protection-respect-and-promotion-rights-child-european-union
- Lansdown, G. (2018). Conceptual framework for measuring outcomes of adolescent participation. UNICEF. Retrieved from https://www.unicef.org/media/59006/file
- UNICEF. (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed.). Geneva, Switzerland: UNICEF.
- United Nations Children’s Fund (UNICEF). (2009). UNICEF data. Available from https://data.unicef.org/topic/child-protection/child-marriage/
- United Nations Committee on the Rights of the Child. (2016). General Comment No. 20, on the implementation of the rights of the child during adolescence (CRC/C/GC/20*). Retrieved from https://www.refworld.org/docid/589dad3d4.html
- United Nations Office of High Commissioner of Human Rights (OHCHR) (2012). Human Rights Indicators: A Guide to Measurement and Implementation (HR/PUB/12/5). Retrieved from http://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf
- World Vision International. (2014). Compendium of Indicators for Measuring Child Well-being Outcomes. Retrieved from https://www.wvi.org/sites/default/files/Compendium%20of%20Indicators-English.pdf
Glossary/key words
Evolving capacities
“Evolving capacities is defined as 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” (UN Committee on the Rights of the Child, 2005). Article 5 of the Convention requires that parental direction and guidance be provided in a manner consistent with the evolving capacities of the child, seeing direction and guidance transform with appreciation for this increased ability for decision making in their lives.
Similarly, minimum legal age limits should be consistent with the right to protection, the best interests principle and respect for the evolving capacities of adolescents. This includes provisions for the right to be heard, challenge rights violations and seek redress as they exercise agency and progressively in their own protection (UN Committee on the Rights of the Child, 2016).
Parental responsibility
“States Parties are required to respect that parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. In addition, States Parties are required to respect that parent(s) or others responsible for the child have the primary responsibility to secure, with their abilities and financial capacities, the conditions of living necessary for the child’s development” (UNICEF Office of Research-Innocenti, 2000).
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