It is with great pleasure that we present this third volume of the Stockholm Studies in Child Law and Children’s Rights series, published under the auspices of the Stockholm Centre for the Rights of the Child at Stockholm University, Sweden. This series, in aiding and promoting research in the field of child law and children’s rights globally, seeks to provide timely and high-quality analyses of all issues relating to the interface of children and adolescents with their surrounding societies. The focus is on legal research results, but multi-disciplinary child-right-related studies also have an obvious place in the series and the aim is to publish research not only from Sweden and the other Nordic countries but from around the world.
This present volume by Aoife Daly addresses the question of whether there is a gap between rhetoric and reality when it comes to the right of children to be heard in proceedings affecting them enshrined in Article 12(2) of the un Convention on the Rights of the Child. In this book, an alternative is proposed – 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 will arise from their wishes.”
This idea emanates from extensive analysis of global practice which indicates that hearing children in proceedings is not in fact often interpreted as a right. Aoife Daly argues persuasively that it is instead seen as a possibility where convenient, often only where it is deemed helpful to the court, and sometimes eclipsing due process rights such as attendance at court. When it comes to influencing decisions there are even greater obstacles for children. It is all too easy for adults to ignore the fact that under Article 12 they are supposed to accord ‘due weight’ to children’s views, it is argued, not least because nobody seems to know what this should involve. Children’s wishes, if they are fortunate enough to have had the opportunity to express them, are easily overridden in their apparent ‘best interests’.
It is suggested in this radical and thorough study that the right to be heard has not served children well in proceedings about their best interests and therefore a new concept is necessary. ‘Autonomy’ is ubiquitous in a number of areas including medical law (where, it is pointed out, children’s wishes are taken more seriously), the rights of people with disabilities, and the rights of parents in respect of their children. It is argued convincingly that this concept
The book contains not only this conceptual point, but also very practical suggestions and arguments for the employment of autonomy in practice. The level of ‘harm’ which should be present before children’s wishes can be overridden is outlined, as is the level of support and space which children may need to boost their decision-making. Whilst there would still be room for adult discretion in a system which prioritises autonomy, Aoife Daly argues, at least adults would have more explicit obligations to provide support to children, to clearly consider autonomy and to better justify overriding wishes. This would likely transform thinking about children, and give them a place of greater prominence in proceedings which are supposed to be about them.
This exciting book is a refreshing and much-needed study of the right to be heard in proceedings. It sets a new direction for the concepts of best interests, hearing children and children’s autonomy. Even where legal change to more explicitly acknowledge children’s autonomy is not immediately forthcoming, this book demonstrates that there is much that practitioners, academics and others can do to ensure that children’s autonomy is given the recognition it deserves when children’s best interests are being determined by the courts and other authorities.
Said Mahmoudi
Professor of international law
Pernilla Leviner
Associate professor of public law