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Children, Autonomy and the Courts: Beyond the Right to be Heard

Children, Autonomy and the Courts: Beyond the Right to be Heard

Author: Aoife Daly
Publisher: Brill Nijhoff
ISBN: 9789004355811
Published In: January 2018
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

HKD 2,766.40

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In this book Aoife Daly argues that where courts decide children’s best interests (for example about parental contact) the Convention on the Rights of the Child "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 powerful call for a reconceptualisation of the status of children in a key area of children’s rights.

Foreword

Preface

A Child-Friendly Summary

Acknowledgments

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

A Proposal: Replace the ‘Right to be Heard’ with a ‘Children’s Autonomy Principle’

Introduction

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

The Children’s Autonomy Principle and the Best Interest of the Child

Introduction

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

The ‘Liberal Ideal’: Autonomy, Capacity and the Adult/Child Divide

Introduction

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

Ensuring Good Processes for Children through Respect for Autonomy

Introduction

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

‘Weighing’ Views: The Right to be Heard Does Not Allow Children to Sufficiently Influence Outcomes

Introduction

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

Putting the Autonomy Principle into Practice: Moving from a Focus on ‘Competence’ to One on Significant Harm

Introduction

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

Autonomy Support: Embedding the Children’s Autonomy Principle in Good Systems

Introduction

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

Conclusion

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

Index

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