to their genuine interests369. Specifically, in General Comment N° 12 of 2009, the UN
Committee on the Rights of the Child emphasized the relationship between the “best
interests of the child” and the right to be heard, by asserting that “there can be no correct
application of Article 3 [(Best interests of the child)] if the components of Article 12 are not
respected. Likewise, Article 3 reinforces the functionality of Article 12, facilitating the
Essentials role of children in all decisions affecting their lives.”370
229. Similarly, Article 7 of the Convention on the Rights of Persons with Disabilities
expressly provides that “[c]hildren with disabilities have the right to express their views
freely on all matters affecting them, their views being given due weight in accordance with
their age and maturity, on an equal basis with other children, and to be provided with
disability and age-appropriate assistance to realize that right” (supra para. 136). Therefore,
“it is essential that children with disabilities be heard in all procedures affecting them and
that their views be respected in accordance with their evolving capacities.”371 Moreover,
Article 13 of the Convention on the Rights of Persons with Disabilities provides that “[States
parties shall] facilitate their effective role as direct and indirect participants, including as
witnesses, in all legal proceedings, including at investigative and other preliminary stages.”
230. Likewise, the Court reiterates that children exercise their rights progressively as they
develop a greater level of personal autonomy.372 Consequently, those responsible for
application of the law, whether in the administrative or judiciary sphere, must take into
account the specific conditions of the minor and his or her best interests to decide on the
child’s participation, as appropriate, in establishing his or her rights. This consideration will
seek as much access as possible by the minor to examination of his or her own case.373 The
Court further recalls that the Committee on the Rights of the Child has pointed out that
Article 12 of the Convention establishes the right of every child to freely express her or his
views, in all matters affecting her or him, and the subsequent right for those views to be
374
given due weight, according to the child’s age and maturity.
Simply listening to the child
is insufficient; the views of the child have to be seriously considered when the child is
capable of forming her or his own views, for which the views of the child have to be
375
assessed on a case-by-case basis. . It is worth recalling that these standards are also
369
Cf. Case of Atala Riffo and Daughters v. Chile, para. 196, and Advisory Opinion OC-17/02, para. 99. Also,
the United Nations Committee on the Rights of the Child has established that the right "to be heard […] in any
judicial or administrative proceeding affecting the child”, implies that "this provision applies to all relevant judicial
proceedings affecting the child, without limitation". United Nations, Committee on the Rights of the Child, General
Comment No. 12 (2009). The right of the child to be heard, CRC/C/GC/12, July 20, 2009, para. 32. In particular,
UNICEF has indicated that “Any judicial ... proceedings affecting the child covers a very wide range of court
hearings, including all civil proceedings such as divorce, custody, care and adoption proceedings, name-changing,
judicial applications relating to place of residence, religion, education, disposal of money and so forth, judicial
decision-making on nationality, immigration and refugee status, and criminal proceedings; it also covers States’
involvement in international courts”. UNICEF Implementation Handbook for the Convention on the Rights of the
Child (fully revised third edition) 2007, p.156.
370
Cf. Case of Atala Riffo and Daughters v. Chile, para. 197. Committee on the Rights of the Child, General
Comment N° 12, para. 74.
371
Committee on the Rights of the Child, General Comment N° 9, para. 32.
372
Committee on the Rights of the Child, General Comment N° 7, para. 17.
373
Cf. Case of Atala Riffo and Daughters v. Chile, para. 199, and Advisory Opinion OC-17/02, para. 102.
374
Cf. Case of Atala Riffo and Daughters v. Chile, para. 200 and Committee on the Rights of the Child,
General Comment N° 12, para. 15.
375
Cf. Case of Atala Riffo and Daughters v. Chile, para. 200,and Committee on the Rights of the Child,
General Comment N° 12, paras. 28 and 29.
73
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