Law and Children’s Decision-Making

A special issue of Laws (ISSN 2075-471X).

Deadline for manuscript submissions: closed (12 December 2022) | Viewed by 29006

Special Issue Editors


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Guest Editor
School of Law and Society, University of the Sunshine Coast, Sippy Downs QLD 4556, Australia
Interests: children's capacity and consent; health law; criminal law

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Guest Editor
Faculty of Law, Queensland University of Technology, Brisbane City, QLD 4000, Australia
Interests: child abuse law, research, and policy reform; prevalence and health outcomes of child maltreatment; child sexual abuse law, research and policy; institutional child sexual abuse prevention and regulation; child abuse prevention, identification and response; legal liability for child abuse; mandatory reporting laws and child protection systems; public health law, child maltreatment, and improving child outcomes

Special Issue Information

Dear Colleagues,

The law relating to children is complex. Children’s law spans many areas of law, and these areas of law often intersect, crossing disciplinary and jurisdictional boundaries. The law is continually responding to new challenges relating to children presented by emerging scientific evidence and contemporary life. One example of this is the rapidly changing technological environment, which presents unique challenges for the law in responding to children and sexual activity. Laws in this domain need to appropriately recognise children’s normative consensual sexual behaviour, while protecting them from abuse and offenders’ new ways of exploiting children and avoiding criminal liability.

The law overwhelmingly seeks to protect children or act in their best interests because of their inherent vulnerability. Many approaches are used to justify such a response, including rights-based approaches, parental responsibility approaches, paternalism and best interests approaches. However, these approaches sometimes fail to consider a child’s wishes and may exclude a child from decisions about themselves. While children need protection because of their vulnerability, the law does not always allow for children to contribute to decisions affecting them, or to recognise their capacity to make decisions autonomously. Thus, protecting children from harm, while also encouraging autonomy, can be challenging for governments.

A legal strategy to encourage a child’s contribution to their decision-making will often require consideration of evidence from multiple disciplines. Legal developments should be properly informed by scientific evidence from multiple domains of knowledge, ethics, and an understanding of the law’s historical development and limitations. A psychological approach, for example, might be needed to provide context to the law. Because children develop at different rates, policy decisions about how law should enable their involvement in decisions affecting them can be difficult. Yet, developmental evidence in cognitive, psychosocial, and neurobiological domains has shown adolescents of a certain age and stage of development have the capacity to make their own decisions, especially in situations allowing cognitive deliberation unaffected by heightened emotional arousal. Legal developments should also be consistent with international norms expressed in instruments including the United Nations Convention on the Rights of the Child, and the United Nations Sustainable Development Goals.

This Special Issue provides a forum to explore the complex area of children’s decision-making across a range of settings. How does the law facilitate, or fail to facilitate, children’s involvement in decisions affecting them? When does the law permit children to exercise autonomous decision-making? Under what circumstances should legal systems empower children to make decisions in different settings, and how can sound legal principles be operationalised in lived experience? This Special Issue seeks to build upon existing research to explore the nature, impact and limitations of current legal principles on children’s autonomous decision-making authority. We especially welcome cross-disciplinary contributions that advance knowledge and point to beneficial reforms, and will consider analyses in areas including but not limited to:

  • Criminal law, including criminal responsibility, criminological approaches to decision-making, and approaches to youth justice;
  • Sexual consent and protection from sexual abuse;
  • Healthcare law, including consent to medical treatment;
  • Developmental evidence and decision-making;
  • Human rights approaches to decision-making.

Dr. Dominique Moritz
Prof. Ben Mathews
Guest Editors

Manuscript Submission Information

Manuscripts should be submitted online at www.mdpi.com by registering and logging in to this website. Once you are registered, click here to go to the submission form. Manuscripts can be submitted until the deadline. All submissions that pass pre-check are peer-reviewed. Accepted papers will be published continuously in the journal (as soon as accepted) and will be listed together on the special issue website. Research articles, review articles as well as short communications are invited. For planned papers, a title and short abstract (about 100 words) can be sent to the Editorial Office for announcement on this website.

Submitted manuscripts should not have been published previously, nor be under consideration for publication elsewhere (except conference proceedings papers). All manuscripts are thoroughly refereed through a double-blind peer-review process. A guide for authors and other relevant information for submission of manuscripts is available on the Instructions for Authors page. Laws is an international peer-reviewed open access semimonthly journal published by MDPI.

Please visit the Instructions for Authors page before submitting a manuscript. The Article Processing Charge (APC) for publication in this open access journal is 1400 CHF (Swiss Francs). Submitted papers should be well formatted and use good English. Authors may use MDPI's English editing service prior to publication or during author revisions.

Keywords

  • children’s law
  • autonomy
  • consent
  • decision-making
  • children’s decision-making
  • human rights
  • criminal law
  • health law
  • family law
  • child protection
  • developmental evidence
  • bioethics

Published Papers (8 papers)

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Editorial

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14 pages, 279 KiB  
Editorial
A Continuum of Protection to Empowerment: The Evolving Legal Landscape of Decision-Making for Children and Adolescents
by Dominique Moritz and Ben Mathews
Laws 2023, 12(6), 89; https://doi.org/10.3390/laws12060089 - 06 Dec 2023
Viewed by 1362
Abstract
In 2020, the United Kingdom’s Divisional Court made international headlines for their decision in Bell v Tavistock (2020) [...] Full article
(This article belongs to the Special Issue Law and Children’s Decision-Making)

Research

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18 pages, 314 KiB  
Article
Law and Children’s Decision Making: What Is the Rights Approach?
by John Tobin
Laws 2023, 12(4), 71; https://doi.org/10.3390/laws12040071 - 15 Aug 2023
Cited by 1 | Viewed by 2003
Abstract
This paper outlines three broad models that have informed the relationship between the law and children’s involvement in decision making—the property/instrumentalist approach, the welfare approach, and a rights-based approach. It identifies and critiques contemporary legal practices that regulate children’s decision making against the [...] Read more.
This paper outlines three broad models that have informed the relationship between the law and children’s involvement in decision making—the property/instrumentalist approach, the welfare approach, and a rights-based approach. It identifies and critiques contemporary legal practices that regulate children’s decision making against the standards required under a rights-based approach. The focus is on three contexts—(i) statutory bright line minimum age rules; (ii) presumptive age limits, and (iii) individual decision making involving children where there is often an interplay between the principle of Gillick competency and the parens patriae jurisdiction of a court. The key arguments advanced are that a rights-based approach tolerates minimum age rules and presumptive age limits under certain conditions. A rights-based approach also aligns closely with the principle of Gillick competency but offers a deeper and more nuanced insight into how to enable and support decision making with children across childhood. Finally, a rights-based approach also offers novel insights into how the parens patriae jurisdiction of common law courts, with its historical emphasis on the protection of children, could be developed to better protect children’s rights and decisional autonomy. Full article
(This article belongs to the Special Issue Law and Children’s Decision-Making)
26 pages, 448 KiB  
Article
Children’s Participation in Care and Protection Decision-Making Matters
by Judith Cashmore, Peiling Kong and Meredith McLaine
Laws 2023, 12(3), 49; https://doi.org/10.3390/laws12030049 - 01 Jun 2023
Cited by 2 | Viewed by 2608
Abstract
Laws and policies in different jurisdictions provide a range of mechanisms that allow children involved in child protection processes and care proceedings to express their views when decisions that affect them are being made. Whether these mechanisms facilitate children’s involvement and whether they [...] Read more.
Laws and policies in different jurisdictions provide a range of mechanisms that allow children involved in child protection processes and care proceedings to express their views when decisions that affect them are being made. Whether these mechanisms facilitate children’s involvement and whether they result in children’s views being heard and “given due weight in accordance with the age and maturity of the child”, as required by article 12 of the UN Convention on the Rights of the Child, is the focus of this article. The law, policy and practice in New South Wales, Australia, are used to provide a contextual illustration of the wider theoretical and practical issues, drawing on international comparisons and research. It is clear there is still some way to go to satisfy the requirements of article 12 in Australia and other jurisdictions. These mechanisms often do not provide the information children need to understand the process, nor do they consistently encourage meaningful participation through trusted advocates who can accurately convey children’s views to those making the decisions. It is generally unclear how children’s views are heard, interpreted, and weighted in decision-making processes. The research findings from a number of countries, however, are clear and consistent that children often feel ‘unheard’ and that they have had few opportunities to say what is important to them. A number of conclusions and practice suggestions are outlined for how the law could better accommodate children’s views. Full article
(This article belongs to the Special Issue Law and Children’s Decision-Making)
27 pages, 310 KiB  
Article
Leading Gillick Astray? An Analysis of the Law of Consent Relevant to Trans and Gender Diverse Minors and the Commencement of Gender-Affirming Hormone Treatment
by Malcolm K. Smith
Laws 2023, 12(2), 26; https://doi.org/10.3390/laws12020026 - 10 Mar 2023
Cited by 1 | Viewed by 2617
Abstract
This article outlines and critiques the Australian jurisprudence that has addressed whether minors are able to lawfully consent to gender-affirming hormone treatment, with reference to the landmark decision of Gillick v West Norfolk and Wisbech Area Health Authority. Although the principle of [...] Read more.
This article outlines and critiques the Australian jurisprudence that has addressed whether minors are able to lawfully consent to gender-affirming hormone treatment, with reference to the landmark decision of Gillick v West Norfolk and Wisbech Area Health Authority. Although the principle of Gillick competency is well recognised in law, the Australian legal developments that apply Gillick to decisions about the commencement of gender-affirming treatment, have taken the principle astray. The approach under Australian law has diverged down a path that does not align with the original reasoning in Gillick, nor its contemporary interpretation. I outline the reasoning in Gillick so that the foundational principles are considered before discussing how Gillick has been interpreted and applied in subsequent cases. I then provide an outline of the key legal developments in Australia relevant to minors and the commencement of hormone treatment for gender dysphoria. I undertake a critique of the Australian law in this field and conclude that there is a need for future judicial determination of how Gillick should be applied, not only in the cases relevant to gender dysphoria, but beyond, so that the position in respect of minors’ decision-making is clarified. This is vitally important because the current approach to this issue has potential implications beyond cases relevant to gender-affirming hormone treatment. Full article
(This article belongs to the Special Issue Law and Children’s Decision-Making)
20 pages, 297 KiB  
Article
Children’s Developmental (Im)maturity: Aligning Conflicting Decisional Capacity Assessment Approaches in Australia
by Dominique Moritz
Laws 2023, 12(1), 10; https://doi.org/10.3390/laws12010010 - 13 Jan 2023
Cited by 1 | Viewed by 2351
Abstract
Children’s decision-making is complex. There are many factors that contribute to children’s decisional capacity including cognitive reasoning, developmental maturity, upbringing and circumstances. For healthcare decisions, Australian law acknowledges children’s autonomy, and permits mature children to consent to beneficial healthcare. Yet, it also protects [...] Read more.
Children’s decision-making is complex. There are many factors that contribute to children’s decisional capacity including cognitive reasoning, developmental maturity, upbringing and circumstances. For healthcare decisions, Australian law acknowledges children’s autonomy, and permits mature children to consent to beneficial healthcare. Yet, it also protects them from making life-changing decisions that could contravene their best interests. The criminal law approaches to children’s decision-making in Australia’s jurisdictions involves holding older children fully responsible for their decision-making, regardless of circumstances or maturity. The two approaches conflict because health law offers a protective mechanism for children yet criminal law imposes a punitive approach to children’s decision-making. This article considers whether the dichotomous approaches for children’s capacity assessments in Australian law can be reconciled. Full article
(This article belongs to the Special Issue Law and Children’s Decision-Making)
17 pages, 281 KiB  
Article
Claiming Justice: An Analysis of Child Sexual Abuse Complainants’ Justice Goals Reported during Investigative Interviews
by Robyn L. Holder, Dirkje Gerryts, Francisco Garcia and Martine Powell
Laws 2023, 12(1), 9; https://doi.org/10.3390/laws12010009 - 12 Jan 2023
Cited by 1 | Viewed by 1882
Abstract
Investigative interviewing of children who report sexual victimisation focuses on helping children tell in their own words what happened. Children may say other things important to them such as their justice goals. We conducted the first research into this possibility in an exploratory [...] Read more.
Investigative interviewing of children who report sexual victimisation focuses on helping children tell in their own words what happened. Children may say other things important to them such as their justice goals. We conducted the first research into this possibility in an exploratory analysis of 300 transcripts of actual interviews with child complainants aged 3 to 15 years. Building on an earlier study involving adults, we explored what goals children may articulate, when in the interview process their goals are relayed and in response to which interviewer prompts. Our analysis revealed that most children did articulate one or more justice goals during these interviews, especially their desire for acknowledgement of the victimisation and its wrongfulness. Children articulated their justice goals spontaneously and largely without any direct prompting by the police officer. These findings suggest that there is more that institutions [and researchers] can learn from carefully listening to children and understanding them as agents claiming justice. Full article
(This article belongs to the Special Issue Law and Children’s Decision-Making)
20 pages, 439 KiB  
Article
Reforming the Law on Consent to Medical Treatment for Trans Youth: A Renewed Call for Legislative Intervention
by Steph Jowett, Georgina Dimopoulos and Fiona Kelly
Laws 2022, 11(4), 56; https://doi.org/10.3390/laws11040056 - 14 Jul 2022
Cited by 3 | Viewed by 4455
Abstract
Australian trans youth seeking medical treatment for gender dysphoria can encounter significant legal barriers to healthcare. Legal requirements for obtaining valid consent to gender-affirming care, first established in 2004, mean that an application to the Family Court is required in many cases before [...] Read more.
Australian trans youth seeking medical treatment for gender dysphoria can encounter significant legal barriers to healthcare. Legal requirements for obtaining valid consent to gender-affirming care, first established in 2004, mean that an application to the Family Court is required in many cases before treatment can be provided. The development of Australian law concerning consent for the medical treatment of trans youth has been slow, haphazard, and remains incomplete. The Family Court process has been found to be damaging to trans youth and their families. There is widespread agreement that the law needs reform, even more so since the 2020 decision in Re: Imogen. This article explores the implications of the decision in Re: Imogen for trans youth and their families and raises possible models for reform. It starts by providing the background to Re: Imogen and explaining the current legal position. It then explores why the law needs to be reformed, highlighting the inconsistent approach to competency in Australian law and the harm the current law does to trans youth. Building on critiques of the law in this area, it reviews various options for law reform and suggests an optimal model. Full article
(This article belongs to the Special Issue Law and Children’s Decision-Making)
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Review

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49 pages, 537 KiB  
Review
Adolescent Capacity to Consent to Participate in Research: A Review and Analysis Informed by Law, Human Rights, Ethics, and Developmental Science
by Ben Mathews
Laws 2023, 12(1), 2; https://doi.org/10.3390/laws12010002 - 23 Dec 2022
Cited by 8 | Viewed by 10247
Abstract
Contemporary societies pose major challenges for adolescents and it is essential to conduct research with them to understand their experiences, identify their needs, and discover solutions to major social problems. Social science, humanities and health-related research into violence, technology, and climate change exemplify [...] Read more.
Contemporary societies pose major challenges for adolescents and it is essential to conduct research with them to understand their experiences, identify their needs, and discover solutions to major social problems. Social science, humanities and health-related research into violence, technology, and climate change exemplify vital research endeavours requiring adolescent participation to advance Sustainable Development Goals and enhance individual lived experience and societal flourishing for current and future generations. International and national research ethics guidelines emphasise the necessity to conduct research to advance societal benefit, while upholding principles of autonomy and justice, and promoting participant welfare and avoiding harm. International human rights instruments promote adolescents’ freedom of expression and right to participate in matters affecting them. The rapid generation of robust research findings is essential, but it remains commonly assumed that adolescents cannot provide their own consent to participate in research studies, and the belief that parental consent is required can impede and impair the entire research process. Debate continues about the proper interpretation of legal principles and research ethics guidelines about who may provide consent. Continuing confusion about who must provide consent, and why, impedes the protection of adolescents’ interests and the advancement of society. This article adds to knowledge by providing a multidisciplinary overview of evidence from developmental science, social science, law, human rights, and bioethics about decision-making capacity and entitlements in the context of research participation, and an updated evidence-based analysis of adolescents’ capacity to provide their own consent to participate in social, humanities and health-related research. A conservative application of knowledge from these domains both individually and collectively supports conclusions that adolescents aged 16 are able to provide their own consent to participate in research, and no legal or ethical principle requires the provision of parental consent on their behalf. Practical considerations may support parental involvement in conversations about participation, and some types of research require trauma-informed approaches, but adolescents are developmentally, legally and ethically entitled to make their own decision about whether or not to participate. Full article
(This article belongs to the Special Issue Law and Children’s Decision-Making)
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