No Weight for 'Due Weight'? A Children's Autonomy Principle in Best Interest Proceedings (original) (raw)
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Children, Autonomy and the Courts: Beyond the Right to be Heard
Article 12 of the UN Convention on the Rights of the Child (CRC) enshrines a right of children to be heard and for their views to be accorded due weight. This book considers law and practice from around the globe to demonstrate that the right to be heard is often ill-suited to legal proceedings in which decisions are made in the best interest of the child (for example ‘contact’ arrangements) as it is too vague and limited in cases where children’s personal lives are at issue. The right does not sufficiently mitigate the paternalism of best interest decisions. Children’s wishes are routinely overridden, they are denied basic due process rights, and forced into relationships they do not want. Instead of a right to be heard, it is argued, we need to focus on the concept of autonomy (in the sense of the liberal ideal that we should all have personal freedom in our lives to the extent possible), as autonomy is crucial to our psychological wellbeing and a fundamental principle in liberal democracies. Comparisons are made with medical and disability law and with parents’ rights, where autonomy is treated with the height of seriousness. A ‘children’s autonomy principle’ is proposed which aims to tackle the difficult question of how to attribute weight to children’s views. It is argued that children’s wishes should be upheld in best interest proceedings unless significant harm would likely arise from following those wishes. Children should have ‘autonomy support’ to consider options and assist them through proceedings. In particular it is necessary to move away from the poorly understood question over how ‘competent’ a child might be, to instead accepting that autonomy denial is harmful and therefore asking whether paternalism is truly warranted. This book comes at a time when questions are being asked as to how to learn from, build on and move forward from the basic CRC framework. It is a significant contribution to that debate. It will be of interest to children’s rights scholars and advocates, judges, social workers, lawyers, policy makers and legislators.
Representing children's views and best interests in court: an international comparison
Child Abuse Review, 2005
This paper provides a comparison of a number of alternative models of international practice in relation to the appointment and organization of guardians ad litem and other children's representatives in child care and family proceedings. The paper notes that, in their attempts to address the need for children to have representation in matters affecting their welfare, English-speaking countries have tended to conflate the two salient Articles of the United Nations Convention on the Rights of the Child, that is, Article 3, which deals with the child's best interests, and Article 12, which deals with their right to express their wishes and feelings. Where systems other than 'stand alone' legal representation have been put in place, the child's representative is charged with both assessing their best interests and, often as a secondary duty, communicating their views. The paper concludes that for some groups of children in public or private law proceedings, an advocate (rather than a best interest oriented guardian, and where necessary in addition to a legal representative) may enable better representation of the child in the courts and greater participation by children in legal proceedings, an increased role for children as citizens and a fuller implementation of their rights.
A Proposal: Replace the ‘Right to be Heard’ with a ‘Children’s Autonomy Principle’
This is Chapter 1 of Children, Autonomy and the Courts: Beyond the Rights to be Heard (Daly, 2018). This chapter proposes that, although CRC Article 12 focuses on ‘hearing’ children in proceedings about their best interests, instead the aim should be to facilitate children to exercise autonomy to the highest degree possible, through a children’s autonomy principle. 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 (process autonomy) and the outcome (outcome autonomy) unless it is likely that significant harm would arise from their involvement or preferences. The examination in this chapter of the textual problems with CRC Article 12 will inform arguments later in the book around the moral and legal inconsistencies surrounding the treatment of children’s autonomy in practice.
Introduction: Children, Autonomy and the Courts: Beyond the Right to be Heard
In this introductory chapter to the book 'Children, Autonomy and the Courts: Beyond the Right to be Heard' Aoife Daly outlines why courts' best interest decisions about children are substitute decisions, why a 'right to be heard' in these circumstances is inadequate for children, and how autonomy would be a preferable focus. She also sets the scene for the evidence which will follow which highlights that a right to be heard is not assisting large swathes of children in getting the process, nor the outcome, which they want; but instead retaining traditional power dynamics whereby adults have the final say with little transparency or consistency.
Safeguarding the Dynamic Legal Position of Children: A Matter of Age Limits?
Erasmus Law Review, 2020
In this article a critical reflection upon age limits applied in the law is provided, in light of the tension that exists in international children's rights law between the protection of children and the recognition of their evolving autonomy. The main research question that will be addressed is to what extent the use of (certain) age limits is justified under international children's rights law. The complexity of applying open norms and theoretically underdeveloped concepts as laid down in the UN Convention on the Rights of the Child, related to the development and evolving capacities of children as rights holders, will be demonstrated. The UN Committee on the Rights of the Child struggles to provide comprehensive guidance to states regarding the manner in which the dynamic legal position of children should be applied in practice. The inconsistent application of age limits that govern the involvement of children in judicial procedures provides states leeway in granting children autonomy, potentially leading to the establishment of age limits based on inappropriate-practically, politically or ideologically motivated-grounds.
Glasnik of the Bar Association of Vojvocina, 2023
The principle of the best interests of the child is one of the four fundamental guiding principles underlying the system for the protection of children's rights under the auspices of the United Nations and the Convention on the Rights of the Child (CRC). It constitutes a general principle, a flexible concept/term to which legal practitioners attribute specific meaning in each unique case. The Family Law of the Republic of Serbia and the Convention on the Rights of the Child both lack a definition of this principle, leaving ample room for assessing the child's best interests in concreto, i.e., in the scope of a specific case. In this regard, legal practitioners find valuable guidance in General Comment No. 14 (2013) by the Committee on the Rights of the Child, which clarifies the concept of the child's best interests. This document establishes objective criteria as guiding principles all decision-makers should adhere to in in matters concerning children. In addition to examining the prevalent perspectives within legal theory and regulations concerning criteria for assessing a child's best interests, this paper
“Children’s Participation in Family Law Proceedings: A step too far or a step too small?
The principle that children and young people should have their views considered, when important decisions are made about their lives, is gaining ground in the UK. It is evident in recent requirements for schools to consult children, in legal and procedural requirements for child care proceedings and in adoption proceedings. The principle has also been incorporated into family law proceedings through children's legislation introduced in the
Giving Children a Voice in Court?
Erasmus Law Review, 2020
In the last decade neuropsychological insights have gained influence with regard to age boundaries in legal procedures, however, in Dutch civil law no such influence can be distinguished. Recently, voices have been raised to improve children's legal position in civil law: to reflect upon the minimum age limit of twelve years for children to be invited to be heard in court and the need for children to have a stronger procedural position. In this article, first the current legal position of children in Dutch law and practice will be analysed. Second, development of psychological constructs relevant for family law will be discussed in relation to underlying brain developmental processes and contextual effects. These constructs encompass cognitive capacity, autonomy, stress responsiveness and (peer) pressure. From the first part it becomes clear that in Dutch family law, there is a tortuous jungle of age limits, exceptions and limitations regarding children's procedural rights. Until recently, the Dutch government has been reluctant to improve the child's procedural position in family law. Over the last two years, however, there has been an inclination towards further reflecting on improvements to the child's procedural rights, which, from a children's rights perspective, is an important step forward. Relevant neuropsychological insights support improvements for a better realisation of the child's right to be heard, such as hearing children younger than twelve years of age in civil court proceedings.