Article 12 of the un Convention on the Rights of the Child (crc) stipulates that children should have their views accorded due weight in accordance with age and maturity, including in proceedings affecting them. Yet there is no accepted understanding as to how to weigh children’s views, and it is associated strongly with the indeterminate notion of “competence”. In this article, case law and empirical research is drawn upon to argue that the concept of weighing their views has been an obstacle to children’s rights, preventing influence on outcomes for children in proceedings in which their best interests are determined. Younger children and those whose wishes incline against the prevailing orthodoxy (they may resist contact with a parent, for example) particularly lose out. Children’s views appear only to be given “significant weight” if the judge agrees with them anyway. As it is the notion of autonomy which is prioritised in areas such as medical and disability law and parents’ rights, it is proposed in this article that a children’s autonomy principle is adopted in proceedings – 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 and the outcome, unless it is likely that significant harm will arise from their wishes. They should also have “autonomy support” to assist them in proceedings. This would likely ensure greater influence for children and require more transparent decision-making by adults.
This article seeks to reconceptualise approaches to assessing children’s capacity, particularly in light of Article 5 of the crc, which enshrines the principle of the evolving capacities of the child. Professionals regularly assess children’s capacity, for example when doctors treat children, or when lawyers represent child clients. They usually do this assessment intuitively however, as there is little guidance on how assessment should work in practice. Medical law in England and Wales serves as a case study to examine law and practice as well as challenges in the area. It is concluded that it may not necessarily be possible objectively to measure children’s capacity, and it may need to be done intuitively. Yet it should be done via a process which is rights-based. An approach to children’s capacity is proposed through four concepts based on the UN Convention on the Rights of the Child: Autonomy, Evidence, Support and Protection.