Children, Autonomy and the Courts: Beyond the Right to be Heard by Aoife Daly (review)
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The passing of the UN Convention on the Rights of the Child (CRC) in 1989 moved children's rights into the political agenda. The CRC is a core human rights treaty, ratified by 196 states, setting out international human rights standards for children. Two of its aspects dominate the academic literature. One relates to its implementation. Most countries do not directly incorporate the CRC, but interpret and frame laws with the Convention in mind, which leads to inconsistency. The other relates to the meaning and effectiveness of its articles. Parties to the CRC are guided by four key principles: Article 6 protects the child's right to life and development, Article 2 prohibits discrimination. Article 3 ensures that actions taken on behalf of the child have respect to their best interests and Article 12 promotes autonomy through an evolving capacities approach and a right to be heard.1
Aoife Daly's excellent book2 focuses on Article 12. Her bold thesis is that a shift is needed from simply hearing children in proceedings about their best interests, to seeking to uphold their autonomy. Article 12, she claims, fails empirically and theoretically to uphold their rights. The book is in 8 chapters. Chapter One sets up the argument for a new text to Article 12(2) that incorporates notions of equality, autonomy and support. Chapter Two defends the focus on best interests. Chapter Three considers the limitations of autonomy, eschewing capacity as the threshold for decision-making in favor of an approach based on the avoidance of harms. Chapters Four and Five offer empirical backing to the contention that Article 12 is inadequate and Chapter Six looks at how the courts should override autonomy in cases where significant harm would otherwise occur. Chapter Seven focuses on the additional requirements to produce a child-friendly process and the conclusion is in Chapter Eight, which lambastes Article 12 as "vague," "unambitious," "toothless," and ineffective and reiterates the benefits of a greater focus on autonomy through a revised Article 12(2).
The right of children to autonomy is much disputed. Some argue that parental autonomy is all that is required to protect children's rights, or that autonomy rights abandon children to their rights.3 Daly proposes a model that balances the best interest protection in Article 3 with meaningful protection of their autonomy interests. She sets out a new Children's Autonomy Principle:
In legal decisions in which the best interests 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.4
Daly argues that the focus on autonomy should replace the weak and ineffective "right to be heard" that currently [End Page 1041] dominates Article 12. "Process autonomy" necessitates autonomy support. In other words, relevant proceedings must be carried out in a child-friendly way. Children must be properly informed in a manner they understand and which does not seek to control them, offering them choice in how they are involved. "Outcome autonomy" refers to the right of the child to determine the outcome of the proceedings. Both aspects apply only to the extent that involvement will not cause them significant harm.
In the medical law context, in which many best interests children's proceedings take place, autonomy dominates the landscape, but children are often excluded from its remit. For example, in Montgomery v. Lanarkshire Health Board the Supreme Court recognized the right of patients to make informed medical choices, but restricted the right to "adult patients of sound mind."5 Adult patients (from 16–17) who lack mental capacity are protected by the Mental Capacity Act 2005, Section 3(4) of which requires provision of information relevant to a decision.6 If it is determined that the patient lacks capacity, then a best interests decision is required. In these circumstances, the decision must...
