In ‘Article 31: The forgotten right to cultural life and the arts’, Margareta Aspán analyses the child’s right to rest and leisure, to play and recreation, and to participate freely in cultural life and the arts, as well as the responsibilities of the state to respect and promote opportunities for the child to experience cultural and artistic life. The chapter challenges some of the stereotypical ideas and values about children’s cultural activities being completely different from such activities for adults, by focusing on some of the similarities between adults and children in this regard and discussing various theoretical perspectives on the matter. As explained in Aspán’s chapter, interest has grown recently regarding research on childhood and children’s perspectives on their lives and the world.

However, as the author explains, these changes concerning children’s own perspectives are not always recognized in the area of arts and culture, which to some degree rests on the prevailing conceptualization of children as passive human beings (or ‘becomings’) rather than independent right holders. These assumptions about children appear to be based on a prejudice: that children lack certain abilities and therefore are inferior to adults. This prejudice is sometimes referred to as childism.¹ To challenge these paternalistic ideas that promote stereotyping and disempowerment of children, Aspán’s text illustrates how over-generalizations of children, entails a risk of undermining their possibilities to contribute and participate in the community and cultural life.

Presumptions that young people lack certain capacities or abilities can also be found not only in the judicial interpretation of law, but also in its creation. Such tendencies can even be found in the Preamble of the crc, which stipulates that ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care (…)’. It could be argued that this line of reasoning is drawn from general assumptions about children’s decision-making capacities – assumptions that oversimplify the truth, as individual variations in children’s capacities must always be taken into consideration. Further, Aspán emphasizes the link between children’s right to culture and art and their right to participation. Their opportunities to experience artistic life and be part of the construction of culture depends on their right to participation on their own terms.

From a child-rights perspective, it seems natural that children’s right to art and culture includes genuine possibilities for children to participate in the cultural life of a society and express their own meanings through arts. Children’s right to participation, set out in Article 12 crc, is one of the core principles in the Convention and can be seen as an important prerequisite or foundation for several other children’s human rights (such as the rights enshrined in Article 31). Accordingly, the realization of children’s right to cultural life and arts depends on children having the right to freely express their views and facilitate their participation in all matters affecting their lives.

Unfortunately, as the chapter illustrates, there are barriers in implementing children’s rights – such as the paternalistic view of children as distinctly different from other human beings. These ideas continue to influence the legal implications and interpretations of children’s rights. As an example, children’s legal position and their right to participation are dynamic and depend wholly on their age and increasing maturity. It can be argued that the concept of maturity and the different age standards restrict children’s possibilities to participation because these concepts are constructed and interpreted from an adult perspective. As the author states in the chapter, adults are the ones who determine the definition of playing, learning, and development, and what is or is not child-adequate.

The chapter’s conclusion is that children’s right to culture and arts has been neglected and that the opportunities for a child being taken seriously and being respected are not equal; these opportunities are more or less dependent on the personal interest of the adult. From a legal point of view, the conclusion may be drawn that this sort of systematic stereotyping and disempowerment of children may constitute age-based discrimination, as this practice leads to different treatment in terms of the realization of the right to art and culture.

Article 2 of the crc contains a general principle of equality and prohibition of certain forms of discrimination, including discrimination based on age. Although age limits can be lawful, the differentiation between children and adults illustrated in Aspán’s article indicates fundamental challenges in balancing children’s rights and needs. Since crc entered into force 36 years ago, children’s rights have gained increasing attention at international, regional, and national levels. Nevertheless, as has been stated many times before, a challenge remains: to find a proper balance between children’s rights to protection and their right to participation as equal rights holders – not mere subjects of protection.