In a search for competence? Children’s participation in family law proceedings

dogbod2018, blog

by Professor Kay Tisdall
CRFR Co-Director Professor Kay Tisdall explores why we find it so challenging to involve children and young people in decisions that affect them.

I have been on a journey for the few past months, in terms of exploring the underlying reasons why we find it so challenging to involve children and young people in decisions that affect them. Involving children and young people is required by the UN Convention on the Rights of the Child and is frequently promoted by policy, institutional leaders and key practitioners. And yet adults find it so challenging when making decisions, particularly in formal decision-making about the child’s wellbeing.

In particular, I have been considering family law proceedings in Scotland. At least in legislation, Scottish provisions are very strong in terms of children’s rights to have their views duly considered in disputed parental responsibilities cases (technically Section 11 cases under the Children (Scotland) Act 1995). But from the evidence we have, children’s views seem to be even less considered now than they were ten years go. Why would that be?

One reason may be the pervasive nature of adult decision-makers’ views of children’s competence and capacity. If such a decision-maker considers children in general, and a child in particular, as incompetent and incapable, does that result in children’s views either not being ‘allowed in’ to the decision-making, let along being given ‘due weight’ by the decision-maker?

I went to look at the relevant literature and case law, supported by what evidence we have in Scotland about children’s views being considered in disputed parental responsibilities cases. I asked three questions: What are meant by competence and capacity? How are they used? Do the concepts enhance or detract from children’s participation rights?

While competence may be very well defined in certain professional arenas, it is not in key children’s rights resources (like the UN Committee on the Rights of the Child’s General Comment on Article 12) nor in family law literature. Competence is often mentioned – but casually, with little precision or definition. Alternative terms are used in Scottish reported case law, such as maturity. Across these sources, judging capacity remains problematic in both law and practice.

As concepts, both capacity and competence seem to be detracting rather than supporting children’s rights to participate. The concepts are being used as if competence and capacity are inherent qualities of the child, rather than something a child expresses in context and in relationships. To be honest, I am not sure if they are helpful at all, given their problematic use and historical baggage. But if these concepts are to be used, I would recommend they are subject to far more critique and precise definition. Perhaps fresh ideas from the UN Convention on the Rights of Persons with Disabilities might help the children’s field? The Convention has been radical about moving away from a best interests test, to emphasising the support needed to ensure people can express their legal capacity.

Then the courts system would spend less effort assessing whether a child’s views should be allowed into the proceedings and more on the information children need to participate. We would have to invest in supporting children to develop and express their views. We would have a radical form of child- inclusive proceedings, where we do not use concerns about a child’s welfare as a reason to ignore the child’s rights to participate. Instead, the focus would be to make proceedings as constructive and supportive of children as possible, perhaps requiring radical changes in what are currently adversarial and formal approaches. An opportunity for us to consider in the forthcoming family law review of the 1995 Act in Scotland?

This blog is based on a longer article recently published in the International Journal of Children’s Rights, Challenging Competency and Capacity? (2018, Vol. 26(1): 159-182). This article follows on from the earlier exploration in Tisdall, E.K.M., “Subjects with Agency: Children’s participation in family law proceedings”, Journal of Social Welfare and Family Law 2016a (38(4)), 362–379 (see blog here) and has learnt from collaboration with Carine Le Borgne

See also our previous blog by Dr Aoife Daly ‘Prioritising Children’s Autonomy is Prioritising their Best Interests’

About the Author

Kay Tisdall is Professor of Childhood Policy and Co-Director of the Centre for Research on Families and Relationships at the University of Edinburgh. She is Programme Director of the MSc in Childhood Studies.