Evolving capacity of children-an understanding
The United Nations Convention on the Rights of the Child (UNCRC) gave a new dimension to child rights. Prior to this Convention, children were understood to be dependent on their parents, elders and guardians for their protection. But with the coming of this Convention, children are considered to be subjects of rights i.e. they could exercise and claim those rights. This Convention bestows on children various rights and these rights are to be exercised in accordance with their evolving capacities. Why is this concept of evolving capacity important? Does consideration of evolving capacity of children help in advancing their rights?
Evolving capacity is the concept in which education, child development and youth development programs led by adults takes into account the capacities of the child or youth to exercise rights on his or her own behalf.
The concept of evolving capacity has been for the first time recognized by the United Nations Convention on the Rights of Child (UNCRC) under Article 5. It states that 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
Thus we find that Article 5 of the UNCRC provides that the direction and guidance provided by the parents or other persons who are in responsibility of the child must be taken by taking into consideration the capabilities of the child to exercise rights on his or her behalf.
Article 5 is no doubt an important provision of the convention. This is so because of its recognition of ‘the exercise by the child’ of rights mentioned under the convention and also in the repetition of its language in Article 14. Article 14 provides that
1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in amanner consistent with the evolving capacitiesof the child.
The principle of evolving capacity is very much stitched to Article 12 which provides that every child capable of forming her or his own views has the right to freely express those views and to have them duly considered in all decisions that will affect that child, in accordance with the child's age and maturity. This directly points to “evolving capacities”.
Article 5 speaks about evolving capacity of a child. But then what is meant by evolving capacity of a child? Evolving capacities refers to processes of maturation and learning whereby children progressively acquire knowledge, competencies and understanding, including acquiring understanding about their rights and about how they can best be realized.
Why is the concept of evolving capacity of children important? “Respecting young children’s evolving capacities is crucial for the realization of their rights and especially significant during early childhood, because of the rapid transformations in children’s physical, cognitive, social and emotional functioning, from earliest infancy to the beginnings of schooling.” Evolving capacity should be viewed as an enabling process and not as an excuse for authoritarian practices that actually curtails and limits the independence and autonomy of children. Parents and others should be encouraged to enhance their children in exercising their rights (their right to participation under Article 12 ).
II. Implications of the concept of Evolving capacity of children
What does Article 5 of the United Nations Convention on the Rights of Child (UNCRC) actually aim at? Going through Article 5 of the UNCRC it could be gathered that Article 5 actually aims at transferring the decision making responsibility from adults to the children. This raises a question as to on what basis the convention did so. To it the answer is it did so on the ground that a child irrespective of the age acquires the competence and willingness to take such responsibility. Thus we find that age has not been considered as a factor in determining a child’s competence. Rather requisite knowledge, understanding, and skills of a child are given weightage.
But there are certain questions that crops up from such consideration of evolving capacity of children. First, do conferring/ recognizing such right of taking decision on children completely does away with the incompetence of children in taking such decision? The answer to it is that Article 5 by conferring such right on children does not overturn the presumption of incompetence in children. Rather what it does is that it places an onus on State parties to make certain that children’s capacities are respected and at the same time provide them the necessary protection from exploitation. Also when we go through the wordings of Article 12 we find that the article no doubt talks about the participation of children that actually affects him/ her but at the same time it is the adults who actually retains the responsibility for such outcome. Adults will decide the outcome informed and influenced by the views of the child.
Secondly, do conferring / recognizing such right of children (under Article 5) take away parental rights? The answer to it is no. Parents are given the right to take decisions on behalf of their children so long they do not find it appropriate to hand over the children responsibility to take decision all by themselves or ‘until a prescribed age-limit determined by law’. Even under international law regime we find that parents are given the responsibility of their children. The United Nations convention on the Rights of Children does not do away with this. The Preamble to the Convention (UNCRC) 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, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community’. There are various articles in the convention that emphasize on the parental rights and responsibilities. But does this mean that family has total control over the children? The answer to it can be traced from the discussions of the working group held during the drafting of the Convention (UNCRC). The working group insisted that the States do not give the family total control over the child and that ‘the Protection of the family should be equally balanced with the protection of the child within the family.’ Thus we find that Article 5 says that the State must respect rights and responsibilities of parents, or other caregivers, to provide ‘appropriate direction and guidance in the exercise by the child of their rights in a manner consistent with the evolving capacities of the child’
Parentalism is no doubt apractice of acting to limit children’s freedom and responsibility by well-intended regulations. Children who are incapable of judgment are entitled to the protection and guidance that parents or guardians can provide. But at the same time Parentalism can become demeaning and insulting, when policies are applied that treat competent adults as if they are children.
The role of the State in intervening in private matters between parents and children is a sensitive issue. The Convention (UNCRC) has been critiqued from some quarters on the premise that it undermines parents’ authority to protect children and places them merely in the position of caregivers, required to observe respect for children’s rights. It is argued that by recognizing children’s emerging autonomy, the Convention encourages children to become an adversary of their parents. It has also been raised that recognition of children as rights bearers is rooted in Western philosophy with its traditions of individuality, and as such is at odds with the cultures of, for example, South Asia, which place emphasis on the primacy of the family. But the Indian Government takes the view that the conceptual framework of the Convention on the Rights of the Child, with regard to the child, the family and the State, is fully compatible with its Constitution and other laws.
Arguments that respecting children’s rights will undermine the family fundamentally misunderstand the aims of the Convention. In the Manual of Human
Rights Reporting, it is argued that ‘parents are particularly well-placed to build the capacity of children to intervene in a growing manner in the different stages of decision, to prepare them for responsible life in a free society informing them, giving them the necessary guidance and direction while assuring children the right to express views freely and give those views due weight. Children’s opinions will thus be taken into account, although not necessarily endorsed, and children will be given the possibility of understanding the reasons for a different decision being taken’. In other words, parents play a vital role in the development of their children, providing
essential direction and guidance until such time as the child himself or herself can assume partial or full responsibility for the exercise of their rights.
The role of the parent as primary caregiver is thus to manage and guide that balance in the best interests of children. In its General Discussion day on ‘The Role of the Family’, the Committee on the Rights of the Child stressed the importance of the family in the realization of the child’s civil rights:
‘Traditionally, the child has been seen as a dependent, invisible and passive family member. Only recently has he or she become ‘seen’ and furthermore, the movement is growing to give him or her the space to be heard and respected. Dialogue, negotiation and participation have come to the forefront of common action for children.” There is potential for conflict when children’s assessment of their capacities for independent decision-making do not concur with those of their parents. However, family environments in which children are listened to, respected, trusted and encouraged to take increasing levels of responsibility as they demonstrate capacity are less likely to promote conflict.
III. Is consideration of evolving capacity of children justified?
The Convention on the Rights of Child (UNCRC) is built on the following bedrock-
First, children are subject of rights. For the very purpose of protecting these rights of children parents are given the rights and responsibilities of their children.
Secondly, as with passage of time the capacity of a child evolves and develops (for the purpose of exercising the rights all by himself / herself) the rights of parents goes on decreasing.
Thirdly, the rights of children are same everywhere- be it at home, school, public arena etc. and State has an obligation to protect these rights of the children.
Reading Article 5 along with Article 12 we find that it aims at entitling children to support, encouragement and recognition in taking decisions for themselves in accordance with their wishes and capacity, as well as in the context of their family and community.
There can not be any universal (single unified) way of understanding evolving capacity of children. Understanding of evolving capacity of children varies widely. Even there is no unified understanding as to the definition of childhood. Societies vary in their definition of maturity of children. Development of children is influenced by economic, social and cultural set up. Competing theories in developmental psychology about how children develop are underpinned by the recognition that children’s capacities do evolve and it cannot be denied. But then the difference lies as to when and how children evolve. Some of the theories dominating the field of child psychology (childhood) is bed rocked on the understanding that “development is a staged process, whether with respect to physical, moral, social, emotional or intellectual capacity.” One of the most influential theorists- Piaget argues that “children’s development takes place as a series of discrete stages, each associated with an approximate age range:
sensory motor (birth to 18 months),
pre-operational (18 months to 7 years),
concrete operational (7 to 11 years) and,
formal thinking (11 years and older). For example, he argued that below the age of four years, children are incapable of understanding rules or exercising moral judgments, and that young children are unable to envisage situations from a point of view other than their own.”
It is indeed true that children play a great role in developing themselves.
By recognizing evolving capacity of a child, the child has been given the right to participate and take decisions for himself/herself. The principle of evolving capacity, though a new born baby, has a “profound implications for the human rights of a child.” It is moving away from the popular acceptance/belief that children are not able to decide for themselves and that they need parents/ guardians/ elders to take decision on their behalf. The UNCRC “recognises that children in different environments and cultures who are faced with diverse life experiences will acquire competencies at different ages, and their acquisition of competencies will vary according to circumstances. It also allows for the fact that children’s capacities can differ according to the nature of the rights to be exercised”. Circumstances have an impact on the evolving capacity of a child. Research has shown that irrespective of children belonging to the same age group, they have varied degree of capacity to reciprocate to the environment and situation around it. A child who is under the constant care and protection of his/her parent and who lives a protected life may not have the same level of capacity to deal with a difficult and ugly situation of life as compared to a child (of the same age group) who is exposed to such ugly sides of life. The later categories of children are in a much better position to deal with such situations. This shows that children are irrespective of their tender age, able to take decision for one self. Children in various situations are in need of protection, participation and opportunity for taking autonomous decisions.
IV. Evolving capacity- participation plays a helping hand
Article 12 of the Convention (UNCRC) acknowledges the importance of children’s participation in matters that affects them. It is through participation that children can build their confidence like adult. Participation is not only a means by which children can effect change but also provides an opportunity for developing a sense of autonomy, independence, heightened social competence and resilience. Participation entitles children to be listened to and to be considered seriously. Through participation children can also protect and promote their rights.
V. Reflection of Gillick competence in the concept of evolving capacity?
The very term Gillick competence had its origin in England. This term is basically used in medical science to decide if a child who is sixteen years or younger is able to consent to his or her own medical treatment. This consent means without the permission or knowledge of parents.
This concept of Gillick competence / standard has its root in the decision of the House of Lords in the case Gillick v. West Norfolk Wisbech Area Health Authority. This case involves a health departmental circular (Department of Health and Social security) which was issued to area health authorities, inter alia, advice to the effect that a doctor consulted at a family planning clinic by a girl under 16 would not be acting unlawfully if he prescribed contraceptives for the girl, so long as in doing so he was acting in good faith to protect her against the harmful effects of sexual intercourse. The circular further stated that, although a doctor should proceed on the assumption that advice and treatment on contraception should not be given to a girl under 16 without parental consent and that he should try to persuade the girl to involve her parents in the matter, nevertheless the principle of confidentiality between doctor and patient applied to a girl under 16 seeking contraceptives and therefore in exceptional cases the doctor could prescribe contraceptives without consulting the girl's parents or obtaining their consent if in the doctor's clinical judgment it was desirable to prescribe contraceptives. Mrs. Gillick (plaintiff) who had five daughters under the age of 16, sought an assurance from her local area health authority that her daughters would not be given advice and treatment on contraception without the plaintiff's prior knowledge and consent while they were under 16. When the authority refused to give such an assurance the plaintiff brought an actionagainst the authority. The judge held (i) that a doctor prescribing contraceptives to a girl under 16 in accordance with the advice contained in the department's circular would not thereby be committing an offence of causing or encouraging unlawful sexual intercourse with the girl, contrary to Section 28(1) of the 1956 Act, and (ii) that a parent's interest in his or her child did not amount to a 'right' but was more accurately described as a responsibility or duty, and accordingly giving advice to a girl under 16 on contraception without her parent's consent was not unlawful interference with parental 'rights'. The Judge dismissed the plaintiff's action. However, the plaintiff appealed to the Court of Appeal, which allowed her appeal and granted the declarations sought, on the grounds that a child under 16 could not validly consent to contraceptive treatment without her parents' consent and that therefore the circular was unlawful. The department appealed to the House of Lords against the grant of the first declaration. The House of Lords faced the issue whether the minor could give consent in such situation. The House of Lords focused itself on the issue of consent and not on the powers of the parents or ‘parental rights’. The Court held that the parental rights did not exist and that it did exist only for safeguarding the best interests of a minor. The majority held that in some circumstances a minor could give consent to the treatment and that in those situations a parent had no power to veto treatment. In this case Lord Scarman and Lord Fraser proposed some tests for this purpose. It is Lord Scarman's test which is generally considered to be the test of 'Gillick competency'. Under it he required that a child could consent if they fully understood the medical treatment that is proposed:
"As a matter of Law the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed." Lord Scarman
In their judgments Lords Fraser and Scarman fully reviewed the statute law and case law touching on the issue of consent by the under 16s. Lord Fraser concluded that there was "no statutory provision which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination, and treatment provided that she has sufficient under standing and intelligence to know what they involve." He added: "Parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child and towards other children in the family." He quoted with approval Lord Denning's statement in Hewer v Bryant that the legal right of a parent to the custody of a child even before the age of majority is "a dwindling right which the courts will hesitate to enforce against the wishes of a child, and the more so the older he is." The solution to the problem in the appeal, Lord Fraser continued, could no longer be found by referring to rigid parental rights at any particular age; it depended on a judgment of what was best for the welfare of the particular child. "There may be circumstances in which a doctor is a better judge of the medical advice and treatment which will conduce to a girl's welfare than her parents."
The principle of the law, said Lord Scarman, was that parental rights were derived from parental duty and existed only so long as they were needed for the protection of the person and property of the child. Parental right, he said, yielded to the child's right to make his own decisions when he reached a sufficient understanding and intelligence to be capable of making up his own mind.
Lord Fraser issued the Fraser Guidelines in this case. Under it the following are to be satisfied by the medical professional-
the young person will understand the professional's advice;
the young person cannot be persuaded to inform their parents;
the young person is likely to begin, or to continue having, sexual intercourse with or without contraceptive treatment;
unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer;
the young person's best interests require them to receive contraceptive advice or treatment with or without parental consent.
The above mentioned criterion refers only to contraception. Thus we find that this case says that parental rights over their children existed only for the purpose of safeguarding the best interests of the children. It also recognizes that a minor is able to consent (for treatment) and that such consent should be respected and that parent will have no power to veto such consent (for treatment).
This case is a classic judicial dispute between a child and their parents concerning access to information relevant to family planning or medical procedures to terminate a pregnancy. In such matters, as the above discussion of cases such as Gillick demonstrates, courts must not treat children as merely an appendage of their parents, to whom the interests of children would become entirely subservient.A child of insufficient maturity and understanding will remain dependent on their parents. Indeed, Article 5 of the CRC effectively requires that a court, as an organ of the state, must ‘respect the responsibilities, rights and duties of parents … to provide … appropriate direction and guidance in the exercise by the child of the rights recognized in the [CRC].’ This responsibility, however, remains subject to the caveat that it must be exercised ‘in a manner consistent with the evolving capacities of the child’. Thus, as the House of Lords determined in Gillick, a child of sufficient understanding and maturity has the capacity to enter into legal relationships without the consent of their parents — a position that has been endorsed in numerous jurisdictions by domestic courts.
But then a grey zone exists, in circumstances where a child clearly expresses a view which is contrary to the wishes of their parents. In such cases, a substantive rights approach demands that judges apply the best interest principle in arriving at a decision. Importantly, the assessment of the child’s best interests is not to be reduced to the views of the parents or indeed those of the presiding judicial officer. Instead, the assessment of the child’s best interests must take into account any available empirical evidence as well as the impact of a court’s decision on the other rights to which a child is entitled under the CRC.
There is no doubt that the decision of the House of Lords in Gillick v. West Norfolk and Wisbech Area Health Authority actually developed children’s rights within the common law jurisdictions. This decision which was made some years before the finalization of CRC is very much in keeping with the children’s rights as laid down in the CRC.
VI. Consideration of child witness – on what basis?
The Guidelines on Justice Matters involving Child Victims and Witnesses of Crime
(Adopted by the Economic and Social Council in its resolution 2005/20 of 22 July 2005) stated that every child has, subject to national procedural law, the right to express his or her views, opinions and beliefs freely, in his or her own words, and to contribute especially to the decisions affecting his or her life, including those taken in any judicial processes, and to have those views taken into consideration according to his or her abilities, age, intellectual maturity and evolving capacity.
It also states that age should not be a barrier to a child’s right to participate fully in the justice process and that every child should be treated as a capable witness, subject to examination, and his or her testimony should not be presumed invalid or untrustworthy by reason of the child’s age alone as long as his or her age and maturity allow the giving of intelligible and credible testimony, with or without communication aids and other assistance.
Under Section 118 of the Indian Evidence Act, every person is competent as a witness unless the Court considers that he is prevented from considering the question put to him or from giving reasonable reason because of the factor of age i.e.; tender or extreme age. On what basis is this prevention (tender or extreme age) based? This prevention is based on the presumption that a child could be easily tutored and therefore can be made a puppet in the hands of the elders.
The law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge.
But how does a court determine the competency of a child? To determine competency of a child courts, often undertake the test whether from the intellectual capacity and understanding the child is able to give a rational and intelligent account of what he has seen or heard or done on a particular occasion. Before putting a child into the witness box a Voir dire test is usually conducted by the Court. Under this test the court puts certain preface questions before the child. Such questions have no connection with the case. These questions are put in order to know the competency of the child witness. Therefore it all depends upon the good sense and discretion of the judge. From this we can see that irrespective of the age, the witness given by child is given due weight age on his basis of understanding. His evidence is not discarded right away because he is a child.
To determine the question of competency courts, often undertake the test whether from the intellectual capacity and understanding he is able to give a rational and intelligent account of what he has seen or heard or done on a particular occasion. Therefore it all depends upon the good sense and discretion of the judge.
Experience of childhood is universal. But then that does not mean that every individual have the same capacity as individual capacities differ.
The Convention on Rights of Child recognizes that even before a child completes eighteen years of age, a child may be capable of exercising rights. It also recognizes that a child develops evolving capacities. It is thus required that parents and others act in consonance with the evolving capacity of a child. Assessments made on the basis of age are becoming irrelevant.
Evolving capacity of a child should be paid due consideration while taking any decision. The Convention limitsparental powers when adolescents develop their own capacities not only to make decisions, but also reasonably to anticipate and to bear responsibility for the consequences of their decisions. Adolescence is a phase of transition when young people maybe under the impression that they have acquired capacities which actually they have not adequately acquired, but it is also a phase when adults are liable to deny that young people have acquired the maturity and responsibility they actually possess. This conflict usually arises. Parents’ instincts to protect their children in such situation can degenerate into over-protectiveness, parental denial that their children are no longer child-like, and withholding from adolescents of the experience of responsibility that they need to acquire in order to achieve adulthood. A part of parents’ denial of their children’s growth is often denial of their sexuality and capacity for mature, responsible sexual behavior and choice. This has been highlighted in the case of Gillick. In requiring legal respect for adolescents’ evolving capacities, the Children’s Convention sets legal limits to inappropriate, obstructive and dysfunctional parentalism.
Judiciary has great role in implementing the rights of children as stated under the CRC. There needs to be an understanding that when a competent minor makes an informed decision then there should not be any unwanted interference (by State, parent, judiciary) to such decision. However interference to the extent for ensuring the competency of the child and to verify that the decision undertaken by the child is an informed one be allowed. For the effective implementation of the concept of evolving capacity this right of child needs to be respected and measures should be taken by the government to promote this right of children. Introduction of age limit for the purpose of participation is not wanted in the background of the UNCRC. Understanding the capacity of the child is the need of the day.
 Article 17 of the International Covenant of Civil and Political Rights (ICCPR), Article 8 of the European Convention on Human Rights, and Article 11 of the African Charter on Human Rights. In its General Comment on Article 24 of the ICCPR addressing protection of the child, the Human Rights Committee states that ‘Responsibility for guaranteeing the necessary protection lies with the family, society and the State.
Article 18 provides that parents have the primary responsibility for the upbringing and development of their children. Article 9 imposes strict limitations on the power of the State to separate children from their parents against their will while Article 10 places obligations on the State concerning family reunification. Article 5 stresses that States parties must respect the rights and responsibilities of parents to direct and guide their children
  3 All ER 402 (HL).
The case is binding in England, and has been approved in Australia, Canada and New Zealand. Similar provision is made in Scotland by The Age of Legal Capacity (Scotland) Act 1991. In Northern Ireland, although separate legislation applies, the then Department of Health and Social Services Northern Ireland stated that there was no reason to suppose that the House of Lords' decision would not be followed by the Northern Ireland Courts.
 The plaintiff brought an action against the authority and the department seeking (i) as against both the department and the area health authority a declaration that the advice contained in the circular was unlawful, because it amounted to advice to doctors to commit the offence of causing or encouraging unlawful sexual intercourse with a girl under 16, contrary to s 28(1) of the Sexual Offences Act 1956, or the offence of being an accessory to unlawful sexual intercourse with a girl under 16, contrary to s6(1) of that Act, and (ii) as against the area health authority a declaration that a doctor or other professional person employed by it in its family planning service could not give advice and treatment on contraception to any child of the plaintiff below the age of 16 without the plaintiff 's consent, because to do so would be unlawful as being inconsistent with the plaintiff's parental rights.
 R. Cook, B.M. Dickens International Journal of Gynecology and Obstetrics 70 (2000) 13]21