2 research outputs found
No Weight for âDue Weightâ? A Childrenâs Autonomy Principle in Best Interest Proceedings
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 childrenâs views, and it is associated strongly with the indeterminate notion of âcompetenceâ. 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 childrenâs 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. Childrenâs views appear only to be given âsignificant weightâ 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 parentsâ rights, it is proposed in this article that a childrenâs autonomy principle is adopted in proceedings â 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 âautonomy supportâ to assist them in proceedings. This would likely ensure greater influence for children and require more transparent decision-making by adults.</jats:p