Article 5 of the UNCRC is about recognising that most young people will find that their parents, guardians or family are the people who are most qualified to give them good advice. It’s also about understanding how important family is to a young person’s wellbeing.
Best interests come first
Article 5 says that the parents or guardians of a child or young person should act in their best interests, as set out in UNCRC Article 3. What these are will change as a child or young person grows up: a young person is able to do more things safely than would have been the case when they were a child or a baby.
Parents or guardians should be aware of the changing abilities, wants and needs of children and young people in their care, and should take these into account when thinking about how to act in their best interests. They should be aware of those children and young people’s evolving capacities. Scots law recognises that a parent’s role is more about guidance than direction once a young person turns 16.
When adults who know a child or young person think about that person’s best interests, they should:
- think about what’s best for them in their day to day lives,
- make sure they are protected and cared for.
When adults in positions of power think about children and young people’s best interests, they should:
- think about what’s best for children and young people in their day to day lives when making laws,
- make sure children and young people are protected and cared for,
- make sure that groups who protect and care for children and young people are good at what they do.
Article 3 of the UNCRC is about children and young people’s best interests.
As children grow older, they become more able to understand their lives and make decisions that affect them. This happens gradually, and it doesn’t happen at the same speed for everyone— it depends on things like a child’s experiences, education and maturity.
A child’s ability – or capacity – to make a reasoned decision will depend on the decision being made.
Evolving capacities is a term used to refer to the increasing ability to make reasoned decisions in different parts of a child’s life.
What does the UNCRC say about evolving capacities?
Article 5 of the UNCRC says that the direction and guidance parents give their children should reflect the evolving capacities of each child. When a child is younger, they will need more protection, as they may be more likely to make choices without considering or understanding the consequences. But as a child gets older, this will slowly become less true.
Evolving capacities are also important to Article 12 of the UNCRC.
All children have the right to have their view heard and for it to be taken seriously. But the weight their view is given is dependent on their evolving capacities― the extent to which they can understand the issue and the possible outcomes of a decision.
The concept of evolving capacities should never be used to dismiss a child’s view. The child’s view needs to be taken seriously whenever it’s heard as it can change what an adult considers to be in a child’s best interests, by giving them a better idea of what’s important to the child and what they consider distressing.
More in the Rights questions and answers section
What Article 5 doesn’t mean
Article 5 is about the support a child or young person receives from their family, parents or carers. It shouldn’t be taken to mean a family member or carer can deny a child or young person their rights. If a child or young person’s best interests aren’t being looked after by their family or carers, then there should be things that person can do to change this. Children and young people should be able to make their own decisions about what these changes might be.
It’s important to know that:
- Article 5 doesn’t mean it’s for the best if all children and young people stay with a parent
- Article 5 doesn’t mean it’s wrong if children or young people want to get away from a parent
- Article 5 doesn’t mean children or young people should be judged if they’re not in contact with both their parents.
Parenting Across Scotland, Action for Children and Children1st all offer support services for families, as well as advice and support for parents and children online. Parenting Across Scotland also has a very useful directory of helplines.
Parent Club, supported by the Scottish Government, provides helpful information on children’s rights and how parents, carers and family members can be involved. You can read their case studies to see how the UNCRC can help children and parents deal with different situations.
One Parent Families Scotland focuses on advice and information for single parents.
Turn2Us gives information about benefits, grants and support services for families suffering financial hardship.
Relationship Scotland and the Scottish Mediation Service both offer family mediation services. Relationship Scotland also operate contact centres across the country.
More in the Rights questions and answers section
Relevant General Comments
The Committee on the Rights of the Child has produced many General Comments that help people understand how the UNCRC works in practice.
Some General Comments that are relevant to Article 5 are:
- General Comment 4, on adolescent health and development in the context of the UNCRC,
- General Comment 7, on implementing child rights in early childhood, and
- General Comment 20, on implementation of the UNCRC during adolescence.
Days of General Discussion
The UN Committee on the Rights of the Child facilitates Days of General Discussion where experts from around the world can discuss a child rights issue in detail. The reports of their discussions are a helpful tool to understand how the UNCRC should be interpreted.
Some Days of General Discussion relevant to Article 5 are:
- 1994’s Day of General Discussion on the role of the family,
- 2001’s Day of General Discussion on violence against children within the family and in school,
- 2004’s Day of General Discussion on implementing rights in early childhood, and
- 2011’s Day of General Discussion on children of incarcerated parents.