International treaties, the Charter of Fundamental Rights of the European Union, European Union (EU) secondary law and national legislation provide a number of rights to citizens. Citizens under the age of 18 years are not always entitled to those rights and children are often dependent on the decisions of their parents to exercise certain rights.
The maps and tables presented show the various patterns concerning age requirements for children to acquire rights across the EU to identify inconsistencies, protection gaps and restrictions deriving from different age thresholds. The objective is to assist EU Member States in addressing these issues and to facilitate the EU in exercising its competence to support and coordinate Member States’ actions related to children and youth.
What are minimum ages?
Legal minimum ages are set by states. They define when children are considered to be adults before the law and when they are allowed to access certain rights – such as the right to marry, to vote or to seek employment. The concept of ‘minimum age’ is central when balancing protection versus participation rights. The age ranges are influenced by norms and values and by how a society defines childhood, adolescence and adulthood. These definitions have changed, and will continue to change, over time. For example, in the Middle Ages, children were treated like “little adults” and were expected to work as soon as they were physically able to do so. With the development of the modern state, the understanding arose that children need to be protected, and they were also seen as weak and immature. However, the United Nations (UN) Convention on the Rights of the Child (CRC) added an understanding of children as right holders who should participate in important decision making. This brought a change in paradigm. The setting of age requirements for the acquisition of certain rights or for the loss of certain protections needs to balance the concept of the child as a subject of rights whose evolving capacities must be respected, with the concept of the state’s obligation to provide special protection. Finding the right balance is not an easy task.
What is the legal context?
Article 24 of the EU Charter of Fundamental Rights specifies ‘age and maturity’ as criteria for children’s rights of protection and participation. It stipulates that “children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity”.
The CRC Committee in its General Comment No. 12 on the right of the child to be heard, explains that “age alone cannot determine the significance of a child’s views” because “children’s levels of understanding are not uniformly linked to their biological age.” In this respect, the Committee discourages Member States “from introducing age limits either in law or in practice which would restrict the child’s right to be heard in all matters affecting her or him”.
Regarding age, CRC Committee General Comment No. 7 on implementing child rights in early childhood expresses concerns that “in implementing their obligations under the Convention, States parties have not given sufficient attention to young children as rights holders” and underlines that “the Convention requires that children, including the very youngest children, be respected as persons in their own right.” For older children, the CRC Committee expresses in its General Comment No. 20 on the rights of the child during adolescence its regret for the widespread negative characterisation of adolescence rather than a commitment to support the development of adolescents’ evolving capacities.
How do minimum ages affect the rights of children?
Children across the EU face various minimum age restrictions that define when they are considered capable of making decisions for themselves. The age at which children can consent to sexual activities, for example, or participate in juvenile justice proceedings varies across and even within national jurisdictions. The CRC Committee has emphasised that Member States can only define minimum ages in legislation that are in line with the basic principles of the convention. There should also be consistency, for example, in the age of completion of compulsory education and for admission to employment.
The committee is, however, clear in recommending a protective approach when it comes to exploitation and abuse. It suggests that the minimum age for marriage, recruitment into the armed forces, involvement in hazardous or exploitative work, and the purchase and consumption of alcohol and tobacco needs to be 18 years (CRC General Comment No. 20, 2016).
The Child Rights International Network (CRIN) has added to the debate on setting minimum ages, arguing that simple age-based restrictions are not always the best approach. In its 2016 discussion paper Age is arbitrary: Setting minimum ages, CRIN proposes two justifications for setting minimum ages to provide:
- children with a demonstrated need for protection from significant harm;
- a benchmark for presumed capacity so that the burden is not always on the individual child to prove capacity.
To find an appropriate balance between protection and participation, issues can be grouped into three categories:
- Issues for which the minimum age should be 18 years to correct for abuse of power.
- Issues for which minimum ages should be avoided because age restrictions serve no protective purpose and potentially curb children’s development, freedoms and even protection.
- Issues for which capacity should be the deciding factor due to tensions between the need to protect children and respect for their autonomy.
UNICEF’s Regional Office for Central Eastern Europe and the Commonwealth of Independent States (CEE/CIS) and the Youth Policy Lab Data analysed 70 age-related pieces of legislation in 22 countries and territories, published in the report Age Matters! Age-related barriers to service access and the realisation of rights for children, adolescents and youth. For this publication, FRA shared its data on EU countries covered in the research (Bulgaria, Croatia and Romania). UNICEF identifies the following as particularly striking or contradictory issues: health, marriage and emancipation, access to justice or juvenile justice, political participation, freedom to choose religion, children in the digital world, employment and education, participation in hostilities and enlistment into armed forces and rights of adolescents. For example, the UNICEF report shows clear inconsistencies concerning the age of consent to sexual relationships, marriage, and access to sexual and reproductive health choices without parental consent.
What is this project about?
To identify particularly relevant issues within the 28 EU Member States, the EU Agency for Fundamental Rights (FRA) mapped national legislative provisions on age requirements in various policy areas and domains for protection and participation rights of children.
The need to conceptualise and carry out such a survey arose following previous FRA research, as well as European Commission study findings. These revealed an existing differentiated age threshold among EU Member States of children’s access to certain rights as autonomous and independent rights holders. The FRA research on mapping national child protection systems and on child-friendly justice also pointed to arbitrariness and showed contradictions with respect to age requirements and children’s rights.
These findings raise concerns from a rights of the child promotion and protection perspective. Differences in minimum age requirements between Member States may result in a child, or even an adult, being treated differently based on controversial age criteria. This might also raise concerns about the sound implementation of the EU acquis on the rights of the child, particularly in relation to policy areas where the EU actively exercises its competences – such as, for example, in the areas of asylum and migration, justice, and, in particular, civil justice or data protection.
This web-publication is the first in a series of online publications on issues identified in the comparative data analysis of different patterns concerning age requirements across the EU. It presents data from all EU Member States on particularly striking issues in line with CRIN and UNICEF reports, in the areas of:
- legal capacity;
- political participation;
In relation to relevant European policy and legislative files, further findings will be published on:
- migration and asylum;
- access to justice;
- social and economic rights;
- children in the digital world;
- LGBTI issues.
Related work by the European Commission and FRA
The European Commission studies on children’s involvement in criminal, civil and administrative judicial proceedings and on the evaluation of legislation, policy and practice on child participation in the European Union reveal that provisions on the legal capacity of children to act in various proceedings vary considerably across the EU. Findings of these studies point out that a child’s legal capacity to act in various proceedings is very often subject to age requirements. FRA studies on mapping national child protection systems, child friendly justice and migrant children in detention also point to arbitrariness and contradictions with respect to age requirements and children’s rights.
Research and timeline
FRA’s multidisciplinary research network, Franet, collected the information, and its reference period was until April 2016. Legislative developments since then have been included whenever relevant or if known. The information was shared in September 2017 with all EU Member States through the European Commission’s informal group of experts on rights of the child, with the request to check the accuracy of the data or update any data if relevant.