The viewpoint of childhood and adolescence.

Applying the perspective of childhood and adolescence implies the understanding of children and adolescents as a sociocultural and historical category; as well as abandoning the idea that they represent a natural, immutable, universal given.

We start from the concept of childhood and adolescence as a social construction, each of them a category in constant change during different historical and cultural periods, and this forces us to include a different perspective that takes this particularity into account.

The normative framework is given by corpus juris international protection of girls, boys and adolescentswhich will serve to determine the content and scope of the obligations assumed by the state when analyzing the rights of children and adolescents.[i], and in the specific case of the state’s duty of enhanced due diligence.

The Convention on the Rights of the Child is an international instrument that includes the recognition of children and adolescents as subjects of rights and the need for additional protection due to their vulnerability to threats or violations of human rights.[ii]. The Convention goes beyond a simple declaration to establish the applicability of rights.

The four guiding principles of the Convention on the Rights of the Child are the principle of non-discrimination, the principle of best interests, the principle of respect for the right to life, survival and development and the principle of respect for the views of girls, boys and adolescents in any procedure involving them affects so as to ensure their participation in what is appropriate to identify the special measures that are necessary to enforce your rights.

State due diligence not only encompasses enhanced protection measures before and during any administrative or judicial process, but must also include measures to be taken afterwards to ensure the overall protection of every girl, boy or adolescent .

The principle of best interest[iii]is a guideline for the interpretation and application of all enshrined rights, it is a dynamic concept that must be taken into account in all measures or decisions that affect children and adolescents, primarily in any context, in order to ensure the full use and effectiveness of all rights recognized by the Convention and human rights treaties.

The application of the best interests principle must be linked to respect for the right to be heard, which has its normative source in Article 12 of the Convention on the Rights of the Child[iv].

To complete the effective implementation of the perspective in childhood and adolescence, Law 26,061 in article 27 includes minimum procedural guarantees as a mandatory requirement for all actions aimed at children and adolescents to have specialized legal advice and sponsorship.

The conventional and legal regulatory framework is in accordance with the provisions of international treaties on human rights with a constitutional hierarchy – Art. 75 incl. 22 and 23 CN,- Recommendations of international and regional organizations and Advisory opinions and jurisprudence of the Inter-American Court, general observations of the Committee on the Rights of the Child[v]the periodic recommendations of the Committee on the Rights of the Child to the Republic of Argentina, the 2018 Final Observation, the Jurisprudence of the Inter-American Court, Advisory Opinion OC-17-2002 on the Legal Status and Human Rights of the Child of the Inter-American Court.

To complete the effective implementation of the perspective in childhood and adolescence, Law 26,061 in article 27 includes minimum procedural guarantees as a mandatory requirement for all actions aimed at children and adolescents to have specialized legal advice and sponsorship.

This legal sponsorship of children and adolescents is part of the judicial guarantees established in Article 8.1 in conjunction with Article 19 of the American Convention on Human Rights.[vi].

The right to be heard is then materialized with specialized technical assistance that will allow children and adolescents to properly exercise their right to material protection.

Legal sponsorship ensures that children and young people are heard in places and procedures where the voices of adults are normally heard.

It is essential that girls, boys and adolescents who are deprived of this are listened to adult-oriented view which perceives childhood and adolescence as unfinished subjects, unsuited to meet certain judicial or administrative requirements.

Therefore, the perspective in childhood and adolescence implies the inclusion of a holistic view of the situations in which children and adolescents are involved, respecting their subjectivity, respecting the international body of law to ensure the effective exercise of the rights established in the present regulations, adapting the substantive law and the procedural provisions to these guiding principles, which constitute a special protective legal regime.

The perspective of childhood and adolescence implies an open view that includes the complexity and multidimensionality that its application requires. A gender- and age-sensitive cross-sectoral approach should be implemented.

Children and adolescents must be treated with respect for their dignity. For this, the principle of personality is imposed in terms of guaranteeing the progressivity of their rights.

The perspective of childhood and adolescence implies respect for the perception of the passage of time. Decision-making processes that affect girls, boys and adolescents should be completed as soon as possible[vii].

The perspective of childhood and adolescence is examined when the universality and interdependence of human rights as a whole is made effective.

Inequalities caused by inequities in the distribution of resources, family violence, gender-based violence, institutional violence accentuate the vulnerability and threats to children and adolescents and increase the challenges that the implementation of the childhood and adolescence perspective requires.

Special protection implies that the state’s observance of the guarantees of a fair trial is transformed into some guarantees or differentiated components in the case of children and adolescents, which are based on the recognition that their participation in a trial is not on the same terms as adults[1].

Applying the perspective of childhood and adolescence challenges the practices of power, population and families; it requires the removal of obstacles, the modification of forms and procedures, and the questioning of thought structures.

degrees:

[i] See The case of Street Children (Villagran Morales et al.) v. Guatemala. Background, supra, pp. 194 to 195 and Case of the Pacheco Tineo Family v. Bolivia. Preliminary objections, grounds, reparations and costs. Decision of November 25, 2013 Series C No. 272, para. 217.

[ii] The Committee on the Rights of the Child stated that “[a] At a universal level, all children under the age of 18 are considered vulnerable because their growth and neurological, psychological, social and physical development are not yet complete. Babies and young children are most vulnerable because of their immature brains that are still developing and their complete dependence on adults. Although children of both sexes are at risk, violence often has a gender component.” Committee on the Rights of the Child, General Comment No. 13: Right of the child to be free from any form of violence, above, para. 72.f).

[iii] Convention on the Rights of the Child. Article 3. General Comment No. 14 of the Committee on the Rights of the Child (2013). Paragraph 6 on the right of the child to have his or her best interests taken as a primary consideration. This supreme interest must be appreciated as a threefold concept. Substantive law, basic interpretive legal principle and procedural norm.

Right: to have your best interests prioritized when weighing different interests to make a decision on a matter that affects you.

Principle: because if a legal provision allows for more than one interpretation, the interpretation that most effectively meets the best interests of the child will be chosen.

One rule: when a decision has to be made that affects the interests of girls and/or boys, the process must include an assessment of the possible consequences of that decision-making on the interests of girls and boys.

[iv] Convention on the Rights of the Child. Article 12. General Comment No. 12 (2009). Committee on the Rights of the Child. Geneva, 25 May – 12 June 2009. The right of the child to be heard. At the national level, it is enshrined in Law No. 26,061- for the comprehensive protection of the rights of children and adolescents- in several of its articles: – Article 3 defines what is understood as the best interest of the child and when it is mentioned In letter b it is indicated , that they will be heard and that their opinion will be taken into account; – Art. 24 establishes that children and adolescents have the right to participate in matters that affect them and are of interest, and that their opinion is taken into account in accordance with their maturity and development and in Art. 27, establishes the minimum guarantees that must be observed in judicial or administrative procedures involving children, among which is that of hearing, that their opinion is primarily taken into account when making a decision that affects them, and of active participation in the process.

[v] In particular, General Comment No. 12 (2009) on the right of the child to be heard (Article 12) and General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration ( Article 3, paragraph 1).

[vi] American Convention on Human Rights. Law No. 23,054. Article 8. Judicial guarantees. 1. Every person shall have the right to be heard, with due safeguards and within a reasonable time, by a competent, independent and impartial judge or tribunal previously established by law, in support of any criminal charge brought against him or the determination of their rights and obligations of a civil, labor, tax or other nature. Article 19. Right of the child. Every child has the right to the protection measures that his status as a minor requires from the family, society and the state.

[vii] Convention on the Rights of the Child. Cte. of 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 (Article 3(1)). Paragraph 93. Perception of time. Children and adults do not have the same perception of the passage of time. Decision-making processes that are slow or time-consuming have a particularly adverse impact on children’s development. It is therefore advisable to prioritize procedures or processes that relate to or affect children and to complete them as soon as possible….

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