No Weight for “Due Weight”? A Children’s Autonomy Principle in Best Interest Proceedings

Abstract

Article 12 of the un Convention on the Rights of the Child (crc) stipulates that children should have their views accorded due weight in accordance with age and maturity, including in proceedings affecting them. Yet there is no accepted understanding as to how to weigh children’s views, and it is associated strongly with the indeterminate notion of “competence”. In this article, case law and empirical research is drawn upon to argue that the concept of weighing their views has been an obstacle to children’s rights, preventing influence on outcomes for children in proceedings in which their best interests are determined. Younger children and those whose wishes incline against the prevailing orthodoxy (they may resist contact with a parent, for example) particularly lose out. Children’s views appear only to be given “significant weight” if the judge agrees with them anyway. As it is the notion of autonomy which is prioritised in areas such as medical and disability law and parents’ rights, it is proposed in this article that a children’s autonomy principle is adopted in proceedings – in legal decisions in which the best interest of the child is the primary consideration, children should get to choose, if they wish, how they are involved and the outcome, unless it is likely that significant harm will arise from their wishes. They should also have “autonomy support” to assist them in proceedings. This would likely ensure greater influence for children and require more transparent decision-making by adults.

Children’s Capacities and Role in Matters of Great Significance for Them

“…We find two main messages from the literature on Article 5 of the crc to be of particular importance: first, the imperative to move away from age as determinant but rather focusing on capacity (Landsdown, 2005). As discussed elsewhere (for example Archard, 2005;Archard and Skivenes, 2009;Daly, 2018), age as a proxy for a linear progressive development in terms of maturity and competency to apply equally to all children is highly problematic. Following the crc, decision-makers in adoption proceedings have an obligation to assess each child's ability to form an opinion and make sure the child is involved accordingly in the proceedings.…”

Children’s Representation in Family Law Proceedings

“…35). This phrase can be understood to provide children with a choice: once a child has opted to be heard in a proceeding, he or she should be provided the opportunity to decide how to be heard (Lansdown, 2011;Sutherland, 2013;Daly, 2018).…”

“…This capability criterion applies to the access of children to participation forms. It should be distinguished from the capacity criterion -'in accordance with the age and maturity of the child' -applicable to the weighing of the views expressed (Daly, 2018). With regard to representation, the capability criterion is relevant as it may determine which children have access to a representative.…”

A systematic review to investigate whether the current family court process in Scotland, leads to emotionally functional adults in cases of adverse childhood experiences.

“…Courts typically belief that children should not be involved in the legal process, out-with age-related concerns, there is a general view that children provide inconsistent testimony and are vulnerable to parental manipulation . Daly (2018) argues that autonomy is inherently good for children's welfare and the desire for individual autonomy stems from a need to have one's actions and justifications acknowledged as independent behaviour free from influence. When courts override the child's wishes in relation to contact matters affecting them, they pose harm to the child's right to autonomy in determining what is in their best interest.…”

“…When courts override the child's wishes in relation to contact matters affecting them, they pose harm to the child's right to autonomy in determining what is in their best interest. Therefore, it has been argued that disregarding the child's voice can be detrimental to their health and welfare (Daly, 2018;Holt, 2011) and may lead to future mental health repercussions 2 .…”