Children, Autonomy and the Courts

Beyond the Right to be Heard


In this book Aoife Daly argues that where courts decide children’s best interests (for example about parental contact) the UN Convention on the Rights of the Child's "right to be heard" is insufficient, and autonomy should instead be the focus. Global law and practice indicate that children are regularly denied due process rights in their own best interest proceedings and find their wishes easily overridden. It is argued 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. This book is a call for a reconceptualisation of the status of children in a key area of children’s rights.

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Aoife Daly, Ph.D. (2011), Trinity College Dublin, is Senior Lecturer in Law at the School of Law and Social Justice and the European Children’s Rights Unit at the University of Liverpool. She writes, teaches and advocates extensively on children’s rights.
"The book is exceptionally clear and academically rigorous—it is a pleasure to read. The foreword of Daly’s book is written by Professor Emeritus Michael Freeman, (...). There can be no greater accolade than his ringing endorsement and I can only concur with his view that the book “is thorough, perceptive and novel and will set a benchmark for future analyses of children’s rights in the context of the courts and beyond.” " Emma Cave, Professor in Healthcare Law, Durham University, Human Rights Quarterly, Volume 40, Number 4, November 2018, pp. 1041-1045. "This book is useful for anyone working or researching in the area of children’s participation in family law or child protection proceedings. It constitutes a thoroughly researched summary of the way children’s views are heard and taken into account in many different jurisdictions throughout the world.To that end it can be used as a reference book itself. Daly’s research offers those who may have influence over how children are heard in proceedings, such as judges, welfare officers and lawyers for children, a better way of thinking about how children’s voices can be genuinely heard in a way that is respectful and impactful. It is hoped that this book may be a starting point for reframing the way we think about children’s views and making changes to family law and child protection policies and practices." Nicola Ross, Senior Lecturer, Newcastle Law School, University of Newcastle, Australia and Michelle Fernando, Senior Lecturer, School of Law, University of South Australia, International Journal of Children’s Rights 26 (2018) pp. 837-847.
A Child-Friendly Summary

Introduction: Children, Autonomy and the Courts: Beyond the Right to be Heard
 1 The Argument in Favour of Prioritising Children’s Autonomy in Best Interest Proceedings
 2 The Problem with Best Interest Proceedings
 3 Introducing the Children’s Autonomy Principle
 4 The Aim of this Book: Embedding Children’s Autonomy in Official Decisions
 5 Overview of this Book

1 A Proposal: Replace the ‘Right to be Heard’ with a ‘Children’s Autonomy Principle’
 1 Children and Proceedings: Is Article 12 Effective or is it Just Rhetoric?
 2 The Obscured Autonomy Idea in the crc 21
 3 Let’s Talk about Autonomy Instead of a Right to be Heard
 4 Do Children Want Autonomy in Proceedings?
 5 Why the Text of crc Article 12 is Flawed
 6 The Right to be Heard is a Right Particular to Children: Due Process and Fair Trial Rights
 7 Comparison with Legal Rights for Adults with Cognitive Impairment
 8 Concluding Thoughts on the Validity of the ‘Right to be Heard’ in Proceedings

2 The Children’s Autonomy Principle and the Best Interest of the Child
 1 The ‘Children’s Rights’ Age: The Legal Journey and the Best Interest Principle
 2 The Best Interest Principle: Focusing on the Child
 3 Where Should the Limits of the Best Interest Principle Lie?
 4 The Best Interest Principle in Practice
 5 The Interests of Which Children?
 Concluding Thoughts on Autonomy in the Context of the Best Interest Principle

3 The ‘Liberal Ideal’: Autonomy, Capacity and the Adult/Child Divide
 1 Introducing Autonomy
 2 What Does ‘Autonomy’ Actually Mean?
 3 Self Determination Theory: Autonomy as Crucial to Well-being
 4 Is it so Obvious that Children Should be Denied Legal Autonomy?
 5 What We Can Learn about Autonomy from Medical Law
 6 Children’s Autonomy in Medical Law (Compared to Other Areas of Law): A Different Ball Game?
 7 Developmental Psychology and Children’s Decision-Making Abilities
 Conclusions on Children and Autonomy

4 Ensuring Good Processes for Children through Respect for Autonomy
 1 Provision at National Level for the Right of Children to be Heard in Best Interest Proceedings
 2 Providing the Opportunity: Too Little Too Late?
 3 Do Children Enjoy the Right to be Heard the Way they Wish?
 Concluding Thoughts on the Process of the Right to be Heard

5 ‘Weighing’ Views: The Right to be Heard Does Not Allow Children to Sufficiently Influence Outcomes
 1 The Right to be Heard is Not Making a Sufficient Difference
 2 The Right to be Heard Has Benefited Some Older Children
 3 Younger Children’s Wishes Devalued
 4 Why the Right to be Heard Gives Children Little Influence on Outcomes
 5 Concluding Thoughts on the Inability of Children to Influence Outcomes

6 Putting the Autonomy Principle into Practice: Moving from a Focus on ‘Competence’ to One on Significant Harm
 1 Justifying a Focus on Significant Harm
 2 Redefining Harm: Repressing Autonomy as Harmful
 3 Significant Harm in the Context of Respect for Children’s Autonomy
 4 The Concern that Children Will be Pressured or Manipulated in Proceedings
 5 The Complexity of Reality: Resources and Other Obstacles
 6 The Process of the Children’s Autonomy Principle and Its Application
  Concluding Thoughts on a Focus on Significant Harm

7 Autonomy Support: Embedding the Children’s Autonomy Principle in Good Systems
 1 A Different Approach for Legal Systems: Children as Equals
 2 Balancing Autonomy and the Integrity of the Family
 3 Not Just Providing an Opportunity: Encouraging and Assisting
 4 Autonomy Support: Structuring Respect
 5 Systems Suitable for Autonomy Support
 Conclusions on Embedding the Children’s Autonomy Principle in Good Systems

 1 Recognising that Children Deserve More than a Right to be Heard
 2 Prioritising Children’s Autonomy in the Courts: Moving beyond a Right to be Heard
 3 Reframing the Best Interest Principle to Explicitly Include Autonomy
 4 Respecting Families and Supporting Autonomy
 5 Reframing Systems for Best Interest Proceedings

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