Ombudsman for Children in Finland

Reply by Maria Kaisa Aula, Ombudsman for Children, Finland

To the presentation by David Archard: the UN Convention on the Rights of the Child - some philosophical thoughts, Nordic Child Welfare Congress 1009, Bergen, Norway, 9 September 2009

Ladies and gentlemen,

In his paper David Archard deals thoroughly with two of the fundamental principles of the Convention on the Rights of the Child: the priority given to the interests of the child (Article 3), and the right of the child to participate, influence and be heard in matters concerning the child (Article 12). He considers that there is a "creative and productive tension" in the Convention between these two principles. And he refers to t situations where  a court has not considered a child's  interests when handling an individual matter in a manner in which the child would have wished. It would be injurious to deny this tension, David Archard argues.

Archard concludes by saying that the ‘tension' comes about because the child is not yet an adult. The child is an individual who has rights, but because of his/her immaturity does not have a full right of self-determination in his/her own affairs. However, the right of the child to be heard is important, even when it does not decide the outcome of a matter being dealt with.

It is easy to concur with Archard's conclusion, even though as a practitioner one might have have reached the conclusion a bit sooner. Certainly it is worthwhile to consider all possible arguments, including those  that one might  sometimes take too much for granted. I  would also like to point out that the examples in the presentation concern  only one aspect  of children´s participation rights, namely individual children in health care situations. These are rather extreme cases  concerning life and death decisions affecting the child.

However, I would like to look a bit more closely, from the Finnish point of view, at what we mean by "the child´s best interests" and what  we mean by "the participation rights" of children. I prefer to take a  broader perspective than that of individual cases only -  important though they are.  My work as the ombudsman for children in Finland has had most to do with the participation rights of children collectively.

In Finland, the CRC has done its best in order to underline that the child´s best interests approach must always include finding out what the children themselves think about the issue and what are their considerations. I find this the most important "value added" feature  of the CRC in our society.

For example st the end of 1990s Article 6 of the Finnish Constitution was amended to read that children are : "entitled to incluence matters that concern them in accordance with their level of development". In the 2000s, regulations that emphasise the participation of children and youth - both as inviduals and as a group - have been included in the Youth Act and the Child Welfare Act. They are also strongly included in the national basic education curriculum.  These amendments reflect both sides of CRC article 12: right of children to be heard in admistrational and court cases and participation of children in larger issues concerning children as a group.

Concerning thechild´s best interests, the definition of this has been the  subject of an ongoing discussion in many areas of society. That was also clarified at least partly by an amendment to the Child Welfare Act. Pargraph 4 of that Act lists the criteria that should be taken into account in assessing what is in the best interests of the child. These are

1)      balanced development and close and constant human relastions

2)      understanding gentleness and careing

3)      education corresponding to inclinations and wishes

4)      a safe growing environment and physical and mental inviolability

5)      an independent and growing sence of responsilibity

6)      the possibility to participate and exert an influence on one´s own affairs

7)      attention to language, cultural and religious background.

In the lecture we just heard Dr Archard highlighted cases where a child´s best interests - as defined by decision makers and adults - were against their explicit will.

I suppose, that this is sometimes the case in individual cases in matters concerning administration and the courts, and in fields other fields than health care.  Such cases may concern decisions on divorce and custody disputes, and decisions on taking children into care. In Finland, too, the courts have ruled on custody disputes without decisively involving the opinions of children over the age of 12. A child care order can be made by court decision even when a child and his or her parents oppose it. Similar situations may exist in decisions on immigrant children coming to the country alone.

There is a tension between a child´s will and decision, and its worthwhile to note it but however, isn´t that potential conflict already solved in the CRC. Children are by definition not adults and they should not be given adult responsibilities. This is why we need the CRC. When I speak for children´s participation, adults most often oppose the rights of the child to participate by claiming that we can't shift responsibility and decision-making powers to children and thereby turn them into ‘little adults'. And I have replied that Children's rights according to  the Convention do not define participation as the power of decision. The issue in the Convention is the responsibility of adults to find out what are the viewpoints and opinions of children, and the responsibility to include them in weighing the decision and the need to provide feedback to children. Children should take part in decision making and even to achieve that in all fields of society would be extraordinary fine result.

The UN Committee on the Rights of the Child actually titled the handling of Article 12 in its very new general comment"The right of the child to be heard". This is, by the way, a very useful document for pracititioners. According to the Committee, the Convention obliges the authority to assess the interests of the child always to find out the child's opinion. However, the view of the Committee is that there is no tension between articles 12 and 3, but that they are principles that complement one another.

I also  want to underline that "participation" in general is not only about making a decision but it includes many stages. Participation includes the opportunity to 1) receive information about the issues and the processes, 2) receive support in expressing themselves, 3) be understood, and 4) receive feedback from adults. In addition, children are also entitled not to participate. The smaller the child concerned, the more adult support is needed when expressing one's view and finding the right methods to do so appropriate to  a child's age and development.

What is involved in the participation process, therefore, is a two-way interaction between adult and child. At best, the right of participation is realized when it is not just a matter of one-off situations or undertakings, but a question of attitude: the adult and decision-maker care and are interested in the child's point of view, take it seriously and give the child reasons for their decision. It could be said that a person's earliest experiences in influencing his or her own life are when as a newborn baby his or her needs are responded to and there is a working interaction between parent and child.

Health care decisions, custody decisions, divorce cases and others are administrative and judicial processes where the states parties should seek better child-friendly working models. There is work going on in that field in the Council of Europe, and it is expected that guidelines for the member states will be given. In decisions concerning parental separation, for instance, the viewpoint of children concerning the impact of the separation and their lives should enlighten parents better in the early stages of  the process. Understanding separation from the viewpoint of the child opens the eyes of adults to the situation and most often serves the interests of the child.

In my own work, however, most of my experience concerns the participation and influence or children in groups, for instance in school life or in planning services in their municipality. This concerns the meaning of participation contained in the first paragraph of Article 12 of the Convention.

For instance, when it comes to developing the school system we have made several surveys on what could be done. Children think that important criterias are the quality of school meals, cosiness of school rooms, the cleanliness of lavatories, the practical nature of the school playground, and reducing bullying. These are not always top items on the agendas of teachers, principals or parents when they thing about improving schools. Often, simply understanding the perspective of the child helps in making better decisions: adults do not always only come to think like children. Children are best experts of their own lives.

In municipalities decision-making does not necessarily take into account what services are important from the stance of children and in what areas they have experiences as clients. The view of municipal residents is often confined to those eligible to vote. Children's parliaments and youth councils are, together with student bodies, important channels for gathering the viewpoints of children and youth. It is through them that children and decision-makers can have a mutual interaction and discourse.

It is equally important to develop the right of children to be heard in municipal services that they use: such as foster care and in child protection services, health care services, recreational activities, immigration services and even in services being developed to reduce violence against children. In Finland, assessments of service quality, for instance in hospitals and social work, rarely include the regular collecting of children's opinions.

Coming back to the principle of the interests of the child, it is usually be applied to an invidual case but it can also be applied in decisions concerning a group of children. This is then a matter of forecasting and assessing the child impact of decisions, or more broadly of child rights mainstreaming. Here too finding out about children's views is necessary as a basis for such an assessment.

Child impact analysis - is a new method towards a more child friendly society. There as some projects in Finland currently carried out nationally on this field. There are some municipalities and parishes that have incorporated the prediction and assessment of child impact as a part of the preparation of their decision-making.  Again, it is clear in municipal and parish decision-making too that not all decisions can be taken in line with children's opinions. Money talks often against children´s best interests.

Nevertheless, it is important that decision-makers know about the impact of different decisions and that they are aware of children's viewpoints. They can also alleviate negative impacts of decisions on children when they are thought out in advance.

In the area of child protection, I have collaborated with a youth group located outside the home. This peer support group, Pesäpuu, has convened for over a year and considered what could we do better in work on child protection in Finland. One of their important conclusions is that children and youth should know better what they are entitled to. More specifically, in their view, a big problem in child protection is that it is difficult to get in touch with the individual social workers who are supposed to deal with their problems. They are too overloaded and hard to contact. Also information about child protection services should be given to children and youth in a language that they know and is understandable.

In concluding this response, I will show you a video made by a group of young people called ‘From young people to young people'. In it the group talks about the importance of becoming listened to and the responsibilities of adults. The poster for this is being distributed widely in Finland, including to all schools, to mark the anniversary of the UN Convention on the Rights of the Child.

***

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.