Leiden Law Blog

Evolving capacities of children: teenagers lead anti-gun law protests in America

Posted on by Sheila Varadan in Private Law
Evolving capacities of children: teenagers lead anti-gun law protests in America

Just four days following the tragic events at Marjory Stoneman Douglas High School in Parkland Florida, which claimed the lives of 17 children, a group of student survivors banded together to start the social movement called Never Again to address gun violence in America. Never Again was created by, inspired by, and led by students. Their message was simple: We will no longer sit and wait for someone else to take action to stop the epidemic of mass shootings. We may be children, but we are not fighting for just children. All lives are precious, and our country must make the safety of its citizens a number one priority. 

Within five weeks, this small group of teenage students had transformed into a national social movement. A nationwide protest was held in Washington D.C on 24 March 2018, drawing more than 200,000 marchers, celebrity supporters, corporate sponsors and national media attention. Sister marches were held on the same day across 62 cities in America, including New York, Los Angeles, Boston, Atlanta, and Pittsburgh. An estimated 800 March for Our Lives events and protests took place  during the weekend of 24-25 March 2018 with an attendance of over 1 million people.

Support for the student-led movement was palpable: celebrities performed at the student-led protests; high-profile celebrities donated funds; parents supported their children speaking out at the rallies; media outlets invited students to act as guest-editors (e.g. the Guardian) to report on the events; and Senators and Congress Representatives, including former President Obama, publicly endorsed the cause and message of the student activists. 

The students from Parkland, however, wanted to do more than just have their voices heard in the  national debate on gun control.  Never Again sought to initiate and lead a social movement that would effect real change in gun control policy on a national level. The student activists developed a clear policy agenda, calling for concrete action and legal reforms: limiting firing power on the streets; banning high-capacity magazines; introducing universal background checks; and eliminating restrictions on the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives which interfere with the regulation and oversight of firearms. The student activists fundraised through a crowdfunding campaign, raising over $US3.5 million, to support their advocacy and activism.  The student activists created a Board of Directors to govern their organization.  Never Again was not just a group of teenagers voicing their concerns, it was a full-fledged political advocacy movement.

Within just three months of its inception, these student activists had effectively changed the gun debate in America. Public support for gun control is at its highest; support for anti-gun lobby groups such as the NRA has gone down; high-profile companies have cut ties with gun-lobby groups; retailers have pledged to stop carrying assault weapons; and the Florida state legislature passed a bill on 9 March 2018 to tighten regulations on gun control. 

The idea that children could be active agents in political movements was still met with surprise by many adults. The Never Again movement challenged the long-held assumptions (and underestimations) of children’s capacities by showing the political acumen of these students to mobilize and engage their rights as citizens and rights-holders. This startled many adults in America who still view children as largely passive recipients and witnesses to political debates and policy-making.

Before the United Nations Convention on the Rights of the Child (UNCRC) was adopted in 1989, children were largely presumed to lack capacity until they reached the legally prescribed age of competency. Parents were given almost unfettered authority to make decisions on their children’s behalf, and the State generally did not interfere in the family.

When the UNCRC entered into force on 2 September 1990, it sought to change how children had been previously framed and understood as rights holders under international law. One way the UNCRC did this was to recognize children’s right to have a say in matters affecting them. Article 12 enshrined a right of participation to children, requiring that a child’s views be accorded weight according to the child’s age and maturity. Article 12 was seen as radical in some respects, in that it recognized that children had a voice, and thus challenged the long-held view of children as passive-recipients of rights - seen but not heard. 

Equally radical, though often overlooked, is Article 5 of the UNCRC, which recognizes the evolving capacities of the child in the framework of parental guidance and direction. According to Article 5, children have the right to receive appropriate guidance and direction from parents, legal guardians and other adult caregivers in a manner that is consistent with their evolving capacities. What makes Article 5 radical is the fact that it recognizes that children’s capacities evolve as they grow and mature. While this may seem obvious, it puts to rest the long-held view that children and childhood are a singular, fixed, and universal state of being - resolved only when a child turns 18 years of age. It further suggests that because children’s capacities are dynamic and evolving; the agency afforded to children to exercise their rights should also be dynamic and evolving. Article 5 casts an obligation on parents and adult caregivers to recognize that ‘as children acquire capacities, they are entitled to an increasing level of responsibility for the regulation of matters affecting them' (UN Committee on the Rights of the Child, ‘General Comment No. 12 (2009): The right of the child to be heard,’ 20 July 2009, UN Doc. CRC/C/GC/12, paras 84 – 85.). Thus, the transition to adulthood should not be marked by a fixed point in a child’s development, but involve a gradual and evolving process in line with the child’s growth and development.

The principle of ‘evolving capacities of the child’ offers an important framework to empower children’s agency.  The CRC Committee has shown a willingness to use the principle of ‘evolving capacities’ beyond the scope of parental guidance as a framework to enable children’s agency.  Examining the commentary of the CRC Committee, there are more than 80 references to the ‘evolving capacities of the child’ in 19 of its 23 General Comments.  In a majority of those instances, evolving capacities of the child were uncoupled from the framework of parental guidance and direction.  The CRC Committee’s use of ‘evolving capacities of the child’ has tended to fall into three broad categories: (a) evolving capacities of the child as ‘an enabling principle’ in which the child is enabled in the exercise of her or his rights under the Convention; (b) evolving capacities of the child as an ‘interpretative principle’ in which a child’s evolving capacities is enlisted as a tool to interpret or give meaning to provisions under the Convention; and (c) evolving capacities of the child as a ‘policy tool’ in which the concept of children’s capacities evolving is used to navigate a wide range of policy issues related to children’s agency and autonomy in the exercise of their rights.

As an enabling principle, the CRC Committee uses ‘evolving capacities of the child’ to recognize ‘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, ‘General Comment No. 20 (2016): on the implementation of the rights of the child during adolescence,’ 6 December 2016, UN Doc. CRC/C/GC/20, para 18.)

As an interpretative principle, the CRC Committee relies on ‘evolving capacities of the child’ to inform its interpretation of provisions, such as Articles 3, 12, 13 and 17.  As the CRC Committee observes, ‘the evolving capacities of the child (art. 5) must be taken into consideration when the child’s best interests and right to be heard are at stake.’ (UN Committee on the Rights of the Child, ‘General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, 29 May 2013, UN Doc. CRC/C/GC/14, section 3.) The CRC Committee further describes the relationship between evolving capacities of the child and Article 12 as of special relevance.

As a policy principle, the CRC Committee relies on the evolving capacities of the child to navigate policy issues relating to children’s agency in matters such as education, HIV/AIDs, adolescent health, corporal punishment, violence against children, early childhood development, the right to health, the right to play and indigenous rights.

It may seem ironic that the Never Again movement has emerged in America – the last remaining country to ratify the UNCRC.  However, what it shows us is that children’s capacities as rights holders and political agents cannot easily be ignored, suppressed, denied or disregarded.  The teenagers of Parkland remind us that when motivated, children will rise up and mobilize, whether it is to exercise agency in their own lives, or to effect change in the lives of others.  Either way, children’s capacities must be recognized, enabled and empowered if children’s rights are to have any meaning.

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