Dr Aoife Daly argues that when judges make decisions about children’s best interests in courts, they often think that they are protecting children by taking decision-making from them, but this fails to acknowledge that children are experts on their own lives.
In my recently-published book Children, Autonomy and the Courts: Beyond the Right to be Heard, I look at cases where courts decide children’s best interests (for example about parental contact) to see how much influence children themselves have on decisions. I examine cases from liberal democracies all over the world and 11 countries in detail, including Scotland, England and Wales.
It seems that children in these cases find their wishes easily overridden. Common decisions from around the world include children being forced into contact visits with estranged parents (sometimes with the threat that the police or court staff will physically force them). In one case a 16 year old was not allowed to give video testimony in care proceedings; and in another a 15 year old was compelled to have inoculations against her will because her father wanted it. Compare these scenarios to adult ones: adults are never forced into relationships or non-essential medical procedures ‘in their interests’.
The instinct of adults, including judges making best interest decisions, is to protect children. This approach is well-intentioned and it recognises rightly that children’s capacities are developing and that they are lacking in experience relative to adults. They may need time, support and information to form an opinion. Sometimes they might not want to give an opinion at all and that should be respected too.
Yet in many cases, children have unmistakable wishes about a situation. An inquest opened recently into the murder of Ellie Butler. The six year old had been living almost all of her life with her grandparents, but was sent by a family court in 2013 to live with her violent father though it seems that she had begged not to be returned. She was beaten to death by him within a year. Adults often ignore that children might well understand their own best interests. It can be very difficult for children to be taken seriously when their wishes incline against strong societal assumptions, such as the need to prioritise the position of birth parents. Younger children find it particularly challenging to get adults to take their views seriously.
I argue in ‘Children, Autonomy and the Courts’ that it is illogical and unjustifiable that children do not have greater influence in court decisions determining their best interests. In liberal democracies, autonomy is held as the most important characteristic for the individual. It is prioritised in medical law for example, and increasingly is upheld to the extent possible for adults with cognitive disability (which demonstrates that decreased ‘capacity’ need not prevent prioritisation of someone’s wishes). Yet judges can make decisions about children without having to prioritise autonomy. Children’s wishes can be treated as just another factor and overridden with ease.
In my book I argue that a ‘right to be heard’ does not go far enough for children. I propose that a children’s autonomy principle, respecting children’s wishes unless significant harm would likely result, would ensure greater support for children in proceedings, and greater obligations on adults to engage in transparent decision-making. It would also mean better best interest decisions, because it is only by giving appropriate priority to children’s own wishes that we can make good decisions on their behalf.