Introduction
Decisional privacy protects an individual's ability to make his or her own decisions and to act without unjustifiable interference from other individuals or the state. In the USA, decisional privacy has found concrete expression in Supreme Court constitutional cases regarding family decision-making in matters such as reproductive control,Footnote 1 lifestyle,Footnote 2 and schooling.Footnote 3 Yet elsewhere, including in the UK, decisional privacy as a concept remains under-theorised, and it has not been theorised in relation to children. The concept of decisional privacy has been understood from the perspective of adults, such that children continue to be ‘relegated to the shadows’ of privacy discourse.Footnote 4 As a result, difficulties persist in recognising and protecting children's – as distinct from their parents’ or caregivers’ – decisional privacy interests. These difficulties emanate from the assumptions that families are in the optimal position to protect children's interests,Footnote 5 and that children's interests align with those of their parents and the family as a collective:Footnote 6 assumptions which invoke the problematic liberal concept of family privacy. The difficulties in acknowledging children's decisional privacy also stem from the way in which ‘the child’ as an identity has been constructed by law: as vulnerable, dependent, and incapable of rational decision-making. The facts of children's dependence on adults for their physical and cognitive development and for their various needs to be met, and children's capacity to develop the ability to meet their own needs in the future,Footnote 7 mean that children prove a challenge to the task of conceptualising and theorising decisional privacy. This paper takes up that challenge, and addresses the lacuna in the academic literature by developing a theory of children's decisional privacy.
Part 1 presents an overview of the meaning and value of the broad, contested concept of privacy. I suggest that privacy is instrumentally valuable as a condition that enables individuals to live autonomously and to pursue their own conceptions of the good life. I understand autonomy to embrace both freedom from intervention by the state and others (negative freedom); and freedom to develop and pursue one's own life plan for self-fulfillment (positive freedom). I explain how decisional privacy enables autonomy by offering individuals the freedom to make important decisions about how they live their lives, as well as scope for self-expression to forge their identities and to define their values.
In Part 2, I argue that the notion of autonomy does not sit well with conceptions of children and childhood in Western liberal societies. I elaborate on the significance of children's capacity (or lack thereof) for two competing theories of rights: the interest theory, and the will or choice theory. I explain how a theory of children's decisional privacy is underpinned by an interest theory of rights, to justify children's entitlement to rights irrespective of their capacity to exercise those rights. I suggest that a gradual, relational and evolving understanding of autonomy overcomes the criticism that children cannot exercise autonomy because they lack the capacity to do so.
Part 3 then proposes four fundamental principles of a children's rights approach to decisional privacy, which are situated within the formulation and understanding of children's rights contained in, and the values embraced by, the United Nations Convention on the Rights of the Child (UNCRC).Footnote 8 The first principle is that children are rights-bearing subjects, not merely objects of concern, with interests that are distinct from those of their parents and other family members. The second principle is that children must be able to exercise autonomy in the enjoyment of their rights, consistent with their evolving capacities. The third principle, which flows from the second, is that children's relative vulnerability and immaturity necessitate that parents provide appropriate direction and guidance to their children in the exercise of their rights. The fourth principle is that children must participate meaningfully in decision-making about their lives. In Part 4, I respond to concerns expressed by those uneasy with the idea of children as rights-bearers, that acknowledging children's decisional privacy rights will undermine parental authority and incite conflict between children and their parents, thereby justifying state intervention in the family. In Part 5, I suggest how a theory of children's decisional privacy may operate in practice, in the context of private family law proceedings under the Children Act 1989.
My paper concludes that recognising and respecting children's right to decisional privacy has significant implications not only for children themselves, but simultaneously for the dynamics and boundaries of the relationship between children, their parents and the state. However, the new conceptual model presented for understanding children as rights-bearers with evolving capacities for autonomy provides adult decision-makers with an opportunity to reflect upon how they make decisions concerning children, and how children can play a meaningful role in those decision-making processes.
1. The meaning and value of privacy
(a) What is privacy?
Described as a concept ‘in disarray’,Footnote 9 and ‘infected with pernicious ambiguities’,Footnote 10 privacy is conceived as an ‘umbrella term’ that serves a range of interests.Footnote 11 Some scholars have endeavoured to explain the meaning of privacy through a single defining feature. The most enduring and influential of these accounts include: the right to be let alone;Footnote 12 control over information;Footnote 13 intimacy;Footnote 14 limited access to the self;Footnote 15 secrecy;Footnote 16 and personhood.Footnote 17 More recent privacy law scholarship has emphasised social context as pivotal to understanding and defining privacy.Footnote 18
A minority of scholars has argued against any definition of privacy or an independent right to privacy, the most noteworthy being Judith Jarvis Thomson. Thomson has submitted that privacy is a ‘cluster of rights’ that ‘derives’ its value from other, ‘more fundamental’ rights or interests – particularly property rights and rights over the person – and so should be ‘reduced’ to these other rights.Footnote 19 In conceptualising children's decisional privacy, to ‘reduce’ the notion of privacy to the ‘more fundamental’ rights to which Thomson refers would generate both conceptual and practical difficulties in respecting decision-making by children. At the conceptual level, the doctrine of patria potestas (paternal power) in Roman law bestowed fathers with property-like rights of custody and control over their children. In doing so, this doctrine constructed social perceptions of the parent-child relationship as being akin to property ownership. The role of the child in society was predominantly to further the interests of the family as an entity, by maintaining the family's land-holding.Footnote 20 In contemporary liberal societies, parental rights are justified as existing ‘for the benefit of the child’,Footnote 21 and ‘only so long as they are needed for the protection of the person and property of the child’.Footnote 22 For a concept of privacy to entertain the view that parents have property rights over their children would be fundamentally antithetical to the foundations of contemporary family law and the paramountcy of children's best interests.Footnote 23
A related problem with Thomson's reductionist conception of privacy is that notions of ‘ownership’ over property and over the person are bound up with the notion of autonomy. If, as I argue below, the value of privacy inheres in upholding autonomy – the condition that enables individuals to pursue their own conceptions of the good life – then privacy is not derivative. The theory of decisional privacy that I develop in this paper is concerned with the choices that the child can make in relation to his or her possessions (property rights) and his or her body (rights over the person), consistent with the child's evolving capacities and guided by the child's parents. The child's ability to make such choices enables the child to answer the ‘practical question’Footnote 24 of how he or she would like to live and what kind of person he or she would like to be. This question can only be answered if privacy is recognised as a distinct right or interest with unique value.
The liberal concept of privacy is constructed around three domains: spatial, informational and decisional.Footnote 25 The spatial domain recognises the sanctity of the home as a private or personal realm, where individuals can expect protection from arbitrary interference, intrusion and surveillance by the state or others.Footnote 26 The informational domain operates to protect individuals from actual and potential invasions of privacy through (mis)appropriation and (mis)use of information, and offers control in deciding who will access that information and for what purposes.Footnote 27 The focus of this paper, privacy's decisional domain, protects an individual's ability to make decisions that contribute to defining his or her identity and sense of self, free from the unwarranted interference of other individuals or the state.Footnote 28 Both negative comments and objections (‘you shouldn't allow your child to walk to school by herself at such a young age’), as well as approval and positive remarks (‘your child is so polite’), can amount to a violation of decisional privacy, as both might amount to unwelcome attention and interference in the seemingly ‘private’ matter of how a parent raises his or her child.
These three domains of privacy are underpinned by a normative distinction between ‘private’ and ‘public’ spheres of life. The ‘private’ historically has been equated with the domestic realm and the home, comprising intimate and family relationships, while the ‘public’ has been used to capture the realms of politics and the market.Footnote 29 The public/private divide has long had a gendered, hierarchical aspect: the public considered the sphere of men, the private the sphere of women,Footnote 30 with children subordinate to adult decision-makers in each sphere. This separation between ‘public’ and ‘private’ assumes the value of a distinct realm of non-intervention for the family and family members in their intimate and caretaking relationships.Footnote 31 I elaborate on this point in Part 2(c) below, in the context of challenging the liberal concept of family privacy.
(b) Why is privacy valuable?
Having responded to the question of privacy's meaning, I now turn to address privacy's value. I contend that privacy has an instrumental value; and that it is valued as a prerequisite for the liberal ideal of autonomy. Privacy is normatively important because it protects the diversity of personal choices, actions and ways of life, and it is a necessary condition of the development of an autonomous self. An individual is autonomous if he or she can ask what Rossler has coined the ‘practical question’,Footnote 32 and live accordingly. That question concerns ‘how I want to live, what sort of person I want to be, and how I should best strive for my own good in my own way’.Footnote 33
The essence of the concept of autonomy is the notion of a person being able to live authentically, guided by desires, characteristics, values, and considerations that are not externally imposed, but are self-determined and one's own.Footnote 34 To this end, privacy is valuable and necessary for both freedom from intervention by the state and other individuals; and freedom to forge a life plan and fulfil that plan in pursuit of a rewarding life.Footnote 35 There are two aspects of freedom. The negative aspect aligns with the Hobbesian definition of the absence of obstacles or interference.Footnote 36 The positive aspect of freedom is the conditions and capacity for autonomy, or the ability to ‘will’ and a sufficient range of options from which to choose. Privacy enables one aspect of freedom by addressing the other: it provides the conditions of negative freedom, within which an individual can exercise positive freedom.
‘Autonomy’ and ‘freedom’ are sometimes used interchangeably, yet they are distinct values. Griffin distinguishes them thus: ‘Autonomy is a feature of deliberation and decision; it has to do with deciding for oneself. [Freedom] is a feature of action; it concerns pursuing one's aims without interference’.Footnote 37 An individual requires freedom to be able to exercise autonomy, yet not every free action can be simultaneously labelled autonomous.Footnote 38 Hence a child may make a decision without independent thought and reflection, on the basis of conformity to the values of his or her parents (which could be the product of manipulation, indoctrination, domination), although that child might nonetheless be free to live his or her life by those values as he or she desires.Footnote 39 On this example, the child can be said to have freedom, but not autonomy. This nuance enlivens the practical question: an autonomous life is one in which an individual has an attitude to himself or herself; the opportunity to contemplate his or her desires and actions, and to ask how he or she seeks to live a rewarding, self-determined life.Footnote 40
The capacity to understand what one considers to be the good life involves being able to both construct, and act upon, one's own set of values and life goals that provide the individual with direction and scope for self-reflection.Footnote 41 And fulfilment of this liberal ideal of being able to lead an autonomous life depends on the conditions of, and on claims to, privacy.Footnote 42 Privacy thus delineates the realms that the individual requires to enjoy the freedoms protected in modern liberal societies, including autonomy. But it does more than merely protect those freedoms: privacy ‘substantialises’ them, by securing the conditions that the individual needs to be able to exercise and enjoy those freedoms.Footnote 43 The spatial domain of privacy serves the ideal of autonomy by regulating access to the individual; the informational domain does so by regulating the selective withholding and disclosure of information by, and about, the individual; and the decisional domain of privacy enables autonomy by protecting the individual's capacity to make decisions, behave, act and pursue a way of life of his or her choosing.
In this Part, I have justified the value of privacy as offering the environment that enables individuals to live autonomously. Classic definitions of autonomy within liberalism embrace the individual as ‘a (part) author of his [sic] own life’,Footnote 44 who has the ‘capacity to choose his or her own roles and identities, and to rethink those choices’.Footnote 45 By virtue of a rich body of feminist scholarship,Footnote 46 and children's rights scholarship,Footnote 47 the concept of autonomy is no longer wedded to the traditional liberal ideal of the rational, competent, independent adult who has the capacity to determine and act in his or her own best interests.Footnote 48 Fortin has argued that ‘children, as human beings, should, like adults, … be free to lead their own lives according to their own conception of a good or worthwhile life, provided that this does not illegitimately restrict the liberty of others to do the same’.Footnote 49 However, the notion of autonomy in relation to children and their lives remains problematic. In Part 2, I respond to two challenges to my justification for developing a theory of children's decisional privacy.
2. (Re)conceptualising children's decisional privacy
The theory of children's decisional privacy developed in this paper is premised upon an interest theory of rights,Footnote 50 under which all humans have rights in virtue of their shared humanity (‘the equal and inalienable rights of all members of the human family’).Footnote 51 The interest theory understands a right as involving the protection of a sufficiently important interest, and the imposition of duties on others, the performance of which ensures that the rights-holder can enjoy that interest. Children's entitlement to rights exists irrespective of their capacity to exercise those rights.Footnote 52
I take children's evolving autonomy – their capacity for autonomy and in some cases, actual autonomy – as the interest to be promoted by recognising and respecting children's right to decisional privacy.Footnote 53 However, this interest must be capable of withstanding two criticisms. The first is that children are not, and cannot be, autonomous. The second is that, even if children are recognised as autonomous beings, they cannot in fact exercise that autonomy, because they lack the capacity to do so. To understand the source of these criticisms, it is important to first explain the dominant understanding of children and childhood in Western liberal societies, which reflects a will or choice theory of rights. That theory, as I explain below, denies children rights on the basis of their perceived lack of capacity or competence.
(a) The dominant conception of children and childhood: emphasising vulnerability, dependence and irrationality
Childhood continues to be idealised in liberal societies, constructed as ‘the “not-yet-ness” of adulthood’.Footnote 54 Pervasive in such idealisations are notions of the child as an innocent and vulnerable becoming, constantly threatened and in need of protection: from the perceived dangers of decision-making by those entrusted to act in the child's best interests (usually the child's parents), and also from the child's own behaviours and understandings.Footnote 55 The Preamble to the UNCRC describes childhood as a period of ‘special vulnerability during which children are in need of special protection’. In light of their perceived vulnerability, children are conceptualised as human beings who do not yet have the essential attributes of citizenship – including autonomy, reason and the capacity for self-determination – but who will develop these attributes in the future.Footnote 56
The law is but one social institution that constructs children as binary opposites to adults. The dividing line between childhood and adulthood as distinct life stages is arbitrarily fixed by age. Article 1 of the UNCRC defines a child, for the purposes of the Convention, as ‘every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’. However, to deny children rights on the basis of age alone, in Archard's words, ‘would be morally arbitrary and unjust’.Footnote 57 Something more than age is used to deprive children of rights-bearer status: capacity, or more accurately, a perceived connection between children's age and their attainment of a relevant capacity or competence.Footnote 58 As noted above, under the interest theory of rights, a child's status as a human being is enough to entitle a child to rights; the child's capacity is irrelevant to that entitlement.Footnote 59
In the UK, while the age of majority is 18 years,Footnote 60 nuances do exist in the law.Footnote 61 The decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority Footnote 62 established the principle that a child will be found to be competent to consent to medical treatment if the child has achieved ‘a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’.Footnote 63 Lord Scarman adopted an understanding of children's autonomy as gradual and evolving, noting that:
If the law should impose on the process of ‘growing up’ fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change.Footnote 64
Similarly, Lord Fraser observed that, ‘[i]n practice, most wise parents relax their control gradually as the child develops and encourage him or her to become increasingly independent’.Footnote 65 It is important to note that the Gillick standard applies to children under the age of 16 years. Section 8(1) of the Family Law Reform Act 1969 provides that children aged 16 years and over can consent to surgical, medical and dental treatment ‘as if [they] were of full age’. What this means, in practical terms, is that children under 16 years are presumed to lack capacity, while children aged 16 and 17 years are presumed to have capacity.
In light of little practical guidance,Footnote 66 some scholars have suggested that the application of Gillick can be used as a guise for paternalistic decision-making about children ‘in the rhetoric of their rights’.Footnote 67 This is because the child's capacity is a matter of adult value judgements, which transfers agency from children to adults.Footnote 68 For instance, an adult decision-maker may hold a child to be incompetent, and thus unable to give consent, simply because the child's views differ from what the decision-maker considers to be in the child's best interests. The four fundamental principles of a children's rights approach, articulated in Part 3 below, seek to address these concerns, by advocating processes that promote children's meaningful participation, and by requiring parents to assist and guide their children to exercise their decisional privacy rights, consistently with children's evolving capacities for decision-making.
The question of the child's capacity is fundamental to the conceptualisation of children's decisional privacy rights. That an individual must possess certain capacities, including the capacity to make rational choices, as a precondition to holding rights, has been pervasive in Western liberal philosophy. This understanding of rights is firmly rooted in notions of autonomy and reason in social contract theory.Footnote 69 The social contract theorists advanced the idea of a contract between citizen and state, based on the citizen's voluntary consent to be governed, with that notion of consent premised upon the citizen's ability to reason. Incapacity thus justified exclusion from the social contract. Yet the social contract theorists also envisioned a role for the child's parents and family in protecting the child.Footnote 70 The view that a lack of capacity justifies a denial of rights forms the foundation of the will or choice theory of rights.Footnote 71 This theory conceptualises a right as ‘the protected exercise of choice’,Footnote 72 and so denies children the status of rights-bearers, owing to their perceived inability to exercise rational choice. Brighouse, a proponent of the will theory, has argued that children should not be entitled to fundamental agency rights, because ‘[t]he further an agent departs from the liberal model of the competent rational person, the less appropriate it seems to attribute rights’.Footnote 73 Griffin similarly has claimed that infants cannot possess human rights because they are ‘not normative agents’,Footnote 74 while Hart has argued that ‘[i]f common usage sanctions talk of the rights of … babies, it makes an idle use of the expression “a right”’.Footnote 75
The essence of such ‘capacity scepticism’Footnote 76 is that for an individual to be a rights-holder presupposes capacities for rational choice, which children lack.Footnote 77 The assumption is that children do not appreciate the actual value of their choices and their ability to make those choices, and so should be deprived of the ability to choose. In light of this dominant conception of children and childhood in Western legal societies, the notion of autonomy sits ‘uneasily with the reality of children's lives’.Footnote 78 An understanding of autonomy as gradual, evolving and relational enables children to be recognised as capable of having and exercising autonomy, as I now explain.
(b) Autonomy as a gradual, evolving, relational concept
Liberal discourse surrounding children and childhood has long emphasised the notion of development, or of ‘becoming rather than being’.Footnote 79 However, as Cohen has observed, ‘[a]utonomous adults do not spring full blown from the womb. Children and young adults must grow into their autonomy’.Footnote 80 A child's development of his or her various capacities – physical, cognitive, emotional, moral, social and spiritual – is not an ‘instantaneous transformation’Footnote 81 from dependence to full autonomy when the child reaches the age of majority. Rather, the child's development is ‘dynamic and interactional’,Footnote 82 and takes ‘an evolving, albeit not necessarily linear’ course as the child ages.Footnote 83 When the realisation of autonomy is understood as a gradual, evolving process – that is, individuals learn to become, and to be, autonomous in and through social relations, including family relationships – then children can be understood as having the capacity for autonomy.
The relationality of autonomy is such that the good life does not just involve the pursuit and promotion of one's own happiness, but also the fostering of relationships with others and the fulfilment of one's responsibilities.Footnote 84 Individuals – children and adults alike – are not completely free to live their lives however they wish. Relationships, responsibilities, moral duties, and roles within the family and in society, influence and limit individuals’ decisions and choices. Privacy facilitates meaningful and diverse social relationships, by providing individuals with the capacity to control access to information about themselves, and to present themselves to others in different roles and in different ways.Footnote 85
My view that the value of privacy inheres in securing individual autonomy does not presuppose fully autonomous individuals. As members of a family unit, children do not, and cannot, enjoy complete autonomy over their lives. A conception of decisional privacy that envisages autonomy as a relational, socialised value overcomes the objection that justifications for privacy which emphasise individual autonomy undermine respect for family relationships. The crux of such criticism is that, if the value of privacy inheres in protecting individual autonomy, the family unit will be undermined because it promotes ‘a conception of childhood that is severed from, and potentially antithetical to, the idea of the family’.Footnote 86 A relational approach accepts autonomy as an individual value; yet it also recognises that a child's sense of identity cannot be divorced from social context, including the role of the family in society, and the complex nature of a child's relationships with his or her parents, siblings, caregivers and extended family.
(c) The family's role in children's development of autonomy
The gradual, evolving and relational approach to autonomy just articulated is particularly important in the context of the family, because socialisation within the family – through interactions between family members – offers the conditions that enable children to develop an understanding of themselves as autonomous individuals, and as individuals who value autonomy.Footnote 87 The family provides a space for children to develop their identity and to learn and practise their autonomy.Footnote 88 However, parents are both a source of, and a potential threat to, their children's autonomy.Footnote 89 The parent-child relationship is a kind of intimate relationship that lacks the element of ‘choice’, in the sense that children cannot, and do not, ‘choose’ their parents. As Rossler has observed, ‘the protection of privacy always has to do both with the protection of relations and within relations, protection with others and protection from others’.Footnote 90 Attaching privacy to ‘the family’ as an entity is therefore problematic for children.
The liberal concept of ‘family privacy’, buttressed by the public/private distinction noted in Part 1(a) above, understands privacy as protection against unwarranted state interference in the family; or as Dailey has suggested, ‘the right of parents to exclude the state from intervening in decisions regarding their children’.Footnote 91 This concept assumes that the interests of children and those of their parents align, and that parents will make decisions and act in their children's best interests. However, family privacy historically has failed to protect women and children, by endorsing hierarchical social roles within the family.Footnote 92 As Cohen has explained:
Insofar as privacy attached to the family, not to separate family members, and insofar as it was founded on the nature of the protected relationship, not on a conception of the autonomy … of individuals, it meshed quite well with the prevailing conception of the natural family as hierarchical, heterosexual, patriarchal, and internally structured by relations of dependency of children on parents and wives on husbands.Footnote 93
To claim that there exists a collective family interest or family values is to mask and reinforce power disparities between more powerful family members (usually men/fathers) over less powerful members (usually women/mothers and children).Footnote 94 References to the interests or values of ‘the family’, then, must be understood as interests or values determined by the more dominant family member(s). Yet debates in the theoretical scholarship on privacy about the balance of power between parents, children and the state, traditionally have overlooked the rights of children as distinct from their parents. Ascribing rights to individuals within the family – and particularly to children – is antithetical to this traditional understanding of family privacy.
3. A children's rights approach to decisional privacy
The notion of children's rights captures a spectrum of civil, political, social, economic and cultural rights relating to childhood, which serve to enable children to ‘thrive in the present and develop to their fullest potential in the future’.Footnote 95 Scholars have broached the threshold question of whether the language of ‘rights’ for children is even appropriate,Footnote 96 or whether other frameworks or discourses (such as ‘well-being’,Footnote 97 ‘ethic of care’,Footnote 98 or ‘capability’Footnote 99) might more accurately reflect the reality of children's lives, particularly their relative vulnerability to, and dependence on, adults.Footnote 100
A children's rights approach to decisional privacy builds on the significant work of children's rights scholars, including Tobin, who has articulated a ‘substantive’ rights-based approach to judicial decision-making,Footnote 101 and Stalford, Hollingsworth and Gilmore, who consider how children's rights can be ‘integrated into judicial reasoning’.Footnote 102 My theory also embraces Eekelaar's notion of ‘dynamic self-determinism’, which seeks to reconcile the objective of furthering children's best interests with treating children as rights-bearers, by providing scope for the child (rather than adults alone) to determine the content of those interests.Footnote 103 Further, it overlaps with the work of Daly, who understands children's autonomy as relational,Footnote 104 and detaches autonomy from children's capacity.Footnote 105 Daly argues that in best interests proceedings, the focus should be on children's autonomy, rather than on the ‘right to be heard’, as this is more likely to offer children ‘real influence on both process and outcomes’.Footnote 106 As I explain below, children's right to decisional privacy manifests in a practical sense in children's meaningful participation in decision-making about matters that affect them: giving children the opportunity to participate actively in decision-making demonstrates respect for children's evolving capacity for autonomy.
A children's rights approach to decisional privacy embraces the understanding and formulation of children's rights contained in, and the values underpinning, the UNCRC.Footnote 107 This international convention makes no explicit reference to ‘decisional privacy’. Article 16 of the UNCRC protects the child against ‘arbitrary or unlawful interference with his or her privacy, family, home or correspondence’. The concept of decisional privacy, as I explained earlier, is more than a negative freedom, or protection against unjustifiable interference by the state or other individuals. It also serves a positive freedom: a child's ability to develop and pursue his or her own conception of the good life, and to make choices that are consistent with that conception. This understanding of decisional privacy reinforces or facilitates a number of other Convention rights: notably, the child's right to express his or her views and to be heard (Article 12); to receive appropriate direction and guidance in the exercise of his or her rights from the child's parents, in a manner consistent with the child's evolving capacities (Article 5); to preservation of identity (Article 8); and to freedom of expression (Article 13(1)). Children's rights are interdependent and interrelated,Footnote 108 and decisional privacy is a foundation for, or precondition to, the exercise of these other rights under the UNCRC.
I draw on these various Convention rights below to articulate what I consider to be four fundamental principles of a children's rights approach to decisional privacy. These principles are consistent with, and expand on, Tobin's ‘substantive’ rights-based approach,Footnote 109 and the work of Stalford, Hollingsworth and Gilmore in aiming to increase children's ‘visibility’ in law through a ‘children's rights’ judgment.Footnote 110
A children's rights approach to decisional privacy provides rhetorical and moral support for the proposition, recognised in the preamble to the UNCRC, that children need ‘special safeguards and care’. But it also, significantly, (re)conceptualises children as capable of making decisions consistent with their evolving capacities, who should be supported and guided in the exercise of their decisional privacy rights.
(a) Children are subjects with distinct rights and interests
The first fundamental principle of a children's rights approach to decisional privacy responds to the hazards associated with liberal ‘family privacy’ discourse, discussed in Part 2(c) above, by recognising that children have rights and interests that are distinct from those of their parents and other family members. This is an important conceptual recognition of the ‘greater democratisation’ of family relationships,Footnote 111 which displaces the presumption that the interests, values and identities of family members necessarily align within a cohesive, integrated unit. Baroness Hale of Richmond, former President of the Supreme Court of the UK, has explained that ‘[t]hose who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right’.Footnote 112 The UN Committee on the Rights of the Child (CRC Committee) similarly has emphasised that the UNCRC ‘requires that children, including the very youngest children be respected as persons in their own right’, and as ‘active members of families, communities and societies with their own concerns, interests and points of view’.Footnote 113 This first principle does not discount the hierarchical relationship that exists between parents and their children. Yet it requires that, even within such an understanding of the parent-child relationship, children must be respected as active rights-bearing subjects, with distinct rights and interests, not simply as ‘objects of concern’ and protective intervention.Footnote 114
(b) Children exercise autonomy consistent with their evolving capacities
The second fundamental principle is that children must play an active role, consistent with their evolving capacities, in decision-making about their own best interests.Footnote 115 I explained in Part 2(c) above the role of a child's family in the child's development of autonomy and identity. Article 5 of the UNCRC underscores the importance of the child's family in providing ‘appropriate direction and guidance’ in the child's exercise of his or her rights, ‘in a manner consistent with the evolving capacities of the child’. This notion of ‘evolving capacities’ importantly is a ‘positive and enabling’ one,Footnote 116 which supports the right of all children, regardless of age, to experience increasing agency, autonomy and responsibility in the enjoyment and exercise of their rights as they develop and mature.Footnote 117
The evolving capacities principle envisions that a child may reach a level of understanding and maturity in relation to a matter that is such as to obviate the need for parental direction and guidance. However, the principle does not permit children to be forced to make decisions where they are unwilling, or where they feel that they lack the competence, to do so.Footnote 118 To overestimate children's capacities, and so prematurely withdraw parental direction and guidance, triggers the risk of exposing children to abuse, harm and exploitation.Footnote 119 The primary responsibility that parents have for their child's upbringing and development is qualified by the requirement that the exercise of parental responsibility is consistent with the best interests of the child, and with the attainment of the child's rights.Footnote 120 This qualification leads to the third fundamental principle.
(c) Children require appropriate parental direction and guidance in the exercise of their decisional privacy rights
Decisional privacy, under the theory developed in this paper, enables children to exercise autonomy in the enjoyment of their rights, consistent with their evolving capacities. But the theory also posits that children's relative vulnerability and immaturity necessitate that parents provide their children with appropriate direction and guidance in the exercise of their rights, as well as means of protecting and upholding those rights.Footnote 121 Article 5 of the UNCRC strives for a ‘delicate balance’ between acknowledging children's evolving capacities, and recognising the role of parents in helping children to realise their rights as those capacities develop, without unjustified state intervention.Footnote 122 In doing so, it helps to establish the normative basis for moderating the trilateral relationship between children, their parents and the state.
Critically, the focus must remain on the child's right to receive appropriate direction and guidance from his or her parents, to enable the child to enjoy his or her decisional privacy, rather than on parents’ rights to non-interference by the state in the exercise of parental rights and responsibilities.Footnote 123 That parental power must be exercised for the child's benefit, and not for the parents’ benefit, is reinforced by Article 18(1) of the UNCRC: the best interests of the child must be parents’ ‘basic concern’.
A relational approach to children's decisional privacy appreciates that children's rights and interests are intertwined with those of their parents and other family members.Footnote 124 As such, the distinction between parents’ provision of appropriate direction and guidance to their child in the exercise of his or her rights, and parents manipulating their child's exercise of those rights, might not always be easy to make. Owing to the power imbalance inherent in the parent-child relationship, the potential for parents to influence their child's decision, and the inherent difficulties in establishing whether, and if so, how, that decision has been so influenced, are live concerns.Footnote 125
A risk for the child in this context is that he or she will conform to and internalise the values of his or her parents, and that these social conditions will diminish or deny the child's sense of individual choice, and hence ability to exercise autonomy. As I explained earlier, the ability to choose between meaningful options is essential to autonomy: for if an individual has no options, or is unable to choose from those options, then that individual cannot be autonomous. But individual choice is both enabled and constrained by the context of family relationships, and any assessment of a child's autonomous choice must be alive to this context. It is here that the ‘best interests’ or ‘welfare’ principle is critical:Footnote 126 parents would be expected to act in their child's best interests in assisting their child to enjoy his or her decisional privacy rights, by providing appropriate guidance and direction, consistent with the child's evolving capacities.
The notion of ‘appropriate’ direction and guidance may at first blush appear to impose a great burden on parents to provide the ‘right’ support for their children. Parents are effectively required to perform a ‘trustee type role’,Footnote 127 and to take positive steps to assist their child to develop the capacity for autonomy. However, a children's rights approach to decisional privacy proposes that parents have a broad degree of discretion in deciding how to offer ‘appropriate direction and guidance’ to their child, subject to two limits. The first limit is that, for parental direction and guidance to be ‘appropriate’, it must be consistent with all other provisions of the UNCRC.Footnote 128 The second limit is that parental direction and guidance must be flexible enough to accommodate children's evolving ‘interests and wishes’, and their ‘capacities for autonomous decision making and comprehension of [their] best interests’.Footnote 129
Scholars have acknowledged that the practical measures required of states to effectively respect the child's right to receive appropriate parental direction and guidance, consistent with the child's evolving capacities, warrants further attention.Footnote 130 Parents could be provided with training and education by the state to support them in fulfilling their responsibilities; or legislative and policy measures could be implemented to regulate the effective protection and fulfilment of this right.
(d) Children must meaningfully participate in decision-making about their lives
The final fundamental principle is a requirement that children meaningfully participate in decision-making about their lives. A theory of children's decisional privacy emphatically deletes the ‘not’ from the anachronistic adage, ‘children should be seen and not heard’. Recognising children's substantive right to decisional privacy requires attendant procedural rights that facilitate children's participation in decision-making processes about matters that affect them.Footnote 131 A failure to acknowledge these procedural rights renders children's decisional privacy rights ineffective, because it ‘significantly condition[s]’ children's ‘options for action’.Footnote 132 Meaningful participation is thus critical to children's experience of autonomy. Article 12(1) of the UNCRC gives children who are capable of forming a view the right to express their views freely in all matters affecting them, with those views being given due weight in accordance with the child's age and maturity. Article 12(2) of the UNCRC provides children with the opportunity to be heard in legal proceedings affecting them, either directly or through a representative or an appropriate body. Some scholars have interpreted the two considerations identified in Article 12(1) – age and maturity – as enabling ‘adults to retain authority over children’,Footnote 133 and denying children's citizenship.Footnote 134 I accept an alternative interpretation, that these two qualifiers assume that the weight to be afforded a child's views must increase as a child ages and matures,Footnote 135 and require adults to ‘cede their authority over children and actively facilitate their citizenship’.Footnote 136
Assumptions cannot be made about a child's capacity solely on the basis of the child's biological age, given that myriad factors influence and shape the development of children's capacities to form their own views.Footnote 137 According to the CRC Committee, the notion of ‘maturity’, for the purposes of Article 12(1), ‘refers to the ability to understand and assess the implications of a particular matter’ and the child's capacity ‘to express his or her views on issues in a reasonable and independent manner’.Footnote 138 The child's level of understanding in this context should be understood as a continuum, rather than a ‘binary’.Footnote 139 Significantly, ‘understanding’ does not equate to ‘competency’:Footnote 140 for the concepts to be equated would demand that children be unfairly held to adult standards for their views to be given due weight.
Collectively, the above four principles present a conceptual framework for analysing how children's right to decisional privacy should be recognised, interpreted and achieved. The value of children's decisional privacy rights lies in transforming children's status from ‘passive recipients to … active agents’,Footnote 141 by empowering and equipping them to participate in decision-making processes about matters that affect them, consistent with their evolving capacities. Children's exercise of their right to decisional privacy bears an instrumental role in children's development of autonomy and capacity for independent decision-making.Footnote 142 It can also produce more well-informed and relevant decisions,Footnote 143 and promote more effective policy-making on children's issues.Footnote 144
However, it would be naïve to suggest that all adult decision-makers would be partial to understanding and respecting children as ‘active participant[s] in the promotion, protection and monitoring of their rights’.Footnote 145 The next Part of this paper responds to anxieties about the perceived conflictual consequences of recognising and respecting children's decisional privacy rights.
4. Beware a child mutiny! A response to concerns about children having and exercising decisional privacy rights
A criticism of rights-based approaches is that they tend to ‘see familial rights as protections for individual freedom, rather than as rights that create, foster, and protect valued relationships’.Footnote 146 Macleod has labelled this the ‘discourse anxiety’ of ‘corrosion’, which ‘focuses on the threat to family values posed by rights talk’.Footnote 147 The concern is that recognising and respecting children's right to decisional privacy will grant children a licence to do whatever they choose, in relation to any and all matters concerning them: children will be ‘abandoned’ to their autonomy.Footnote 148 The result, so the argument goes, is diminished parental authority, conflict between children and their parents, and a chaotic inversion of the parent-child relationship, which ultimately, will justify violations of family privacy by the state.Footnote 149
The theory of children's decisional privacy developed in this paper represents a radical departure from the dominant welfare model, which requires that parents act in the best interests of their children, and state intervention is justified by parents’ failure to so act.Footnote 150 The ‘dark side’ of the welfare approach, according to Eekelaar, is that the obligation to promote and protect children's best interests also involves adults exercising the power to determine the content and nature of those interests.Footnote 151 A children's rights approach, by contrast, imposes an obligation on parents to guide and enable children to gradually exercise and enjoy their rights independently, and also requires that parental rights and responsibilities, where exercised appropriately, be respected. The theory of children's decisional privacy, then, does indeed undermine the traditional family unit, insofar as it demands that children are not only seen, but also heard and listened to.Footnote 152 It reconfigures the relationships between children and their parents, children and the state, and parents and the state. However, it does not advocate that children can, and must, make all decisions in all matters affecting them.Footnote 153 The principle of evolving capacities in Article 5 of the UNCRC, and a relational approach to autonomy, temper children's alleged free rein, as I explain below.
(a) Fostering a child's current and future potential
A question that remains the subject of debate,Footnote 154 and impacts on concerns about children having and exercising decisional privacy rights, is whether a child's views can ever be determinative of the child's best interests in relation to an issue affecting him or her. English courts have noted that the child's right under Article 12 of the UNCRC is ‘to have the opportunity to express [his or] her views and to be heard, not a right to self-determination’,Footnote 155 and that ‘taking account’ of the child's views ‘does not mean that those views are always determinative or even presumptively so’.Footnote 156 Indeed, Article 12(1) does not necessarily require that children's views be given ‘determinative force’.Footnote 157 Respecting a child's right to decisional privacy is not the same as giving the child the ultimate authority to decide, in relation to each and every matter affecting him or her, what is in his or her best interests. As Baroness Hale of Richmond has observed: ‘As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child's views and doing what he [sic] wants’.Footnote 158 The child's right under Article 5 of the UNCRC to receive appropriate parental direction and guidance, consistent with the child's evolving capacities, anticipates that in practice, given children's lack of capacity to determine their best interests in relation to various matters, parents will regularly make decisions on behalf of their children.
However, to say that ‘children have a voice, not a choice’Footnote 159 is to misconstrue children's right to decisional privacy. My view, supported by the text of the UNCRC, as well as scholars including Tobin,Footnote 160 Eekelaar,Footnote 161 Lundy,Footnote 162 Daly,Footnote 163 and Seymour,Footnote 164 is that a child's views will, in circumstances where the child is of sufficient understanding and maturity in relation to a matter affecting him or her, be determinative of the child's best interests. The child's own views must be respected in these circumstances, even when they conflict with the views of the child's parents. This is because Article 5 of the UNCRC implies ‘a transfer of responsibility for decision-making from responsible adults to children, as the child acquires the competence and … willingness to do so’.Footnote 165 Once the child has developed the capacity to effectively claim and enjoy his or her right to decisional privacy independently of his or her parents, then the child no longer requires the right to appropriate parental direction and guidance.
In various contexts, including healthcareFootnote 166 and child protection,Footnote 167 parents, children and practice professionals engage in shared decision-making, whereby the child is provided with the framework or scaffolding to participate in decision-making to the degree that is considered appropriate for his or her maturity and capabilities.Footnote 168 Research has identified various concerns with children's participation in this context, related to the dominant perception of children as irrational, dependent and vulnerable. These include adults underestimating children's competence;Footnote 169 children feeling that their views are ignored or sidelined by adult decision-makers;Footnote 170 and a prevalent protectionist instinct, being to shield children from the ‘burden’ of decision-making and potential exposure to distressing or sensitive information.Footnote 171
A children's rights approach to decisional privacy accords with a ‘situational’ perspective on shared decision-making, to the extent that it ‘recognises children's right to have a say, without necessarily having full control over decision-making’.Footnote 172 However, a children's rights approach proposes that the protective role of the child's parents and practice professionals cannot justify restricting or interfering with a child's autonomy when the child is found to have reached a level of maturity to understand and appreciate the consequences of his or her decision.Footnote 173 The child's views must be determinative of the child's best interests in these circumstances.Footnote 174 For adults to engage in ‘best interest-based intervention’ and effectively override the child's views of his or her best interests would be neither legally nor morally justifiable.Footnote 175
The evolving capacities principle under Article 5 of the UNCRC may therefore challenge parents’ perceptions of their ‘proper’ role. It may even expose parental reluctance to cede their authority on matters where they feel that they know what is ‘best’ for – and know better than – their child. But as Tobin has observed, ‘[u]ltimately the principle of evolving capacities demands that parents concede that they are not always the sole arbiters of a child's best interests’.Footnote 176 However, a children's rights approach to decisional privacy also recognises that a child's decision-making autonomy might need to be limited if the child's exercise of that autonomy would irreparably impair his or her ‘right to an open future’Footnote 177 or ability to live an autonomous life. Yet in focusing on the child's future potential, this approach does not overlook the child's current needs, attitudes, feelings and preferences.Footnote 178 The theory developed in this paper recognises children as both beings and becomings.Footnote 179 The tension lies in listening to the child's current views and wishes, and balancing those views and wishes with protecting the child's future decision-making autonomy.
Accepting the child's views as determinative of the child's best interests, in circumstances where the child is competent and capable of making an informed decision, does not automatically make the child's views determinative in relation to what measures will be taken to address the matter.Footnote 180 In other words, making the decision and implementing the decision made are two discrete processes. The latter involves a balancing exercise, whereby the impact of the matter on the child must be weighed against the impact on other children and adults involved, and against any other legitimate considerations.Footnote 181
(b) Understanding child-parent conflict through the lens of relational autonomy
Accepting that children's views can be determinative of their best interests in some circumstances, as I have just suggested, means that conflict is liable to arise between children and their parents. The second qualification on the scope of children's decisional privacy rights is that the potential for parent-child conflict in the determination of children's best interests must be understood through the perspective of relational autonomy.
As I explained in Part 2(c) above, children learn to become, and to be, autonomous in and through their relationships with their parents and other family members. The rights and interests of children, and the rights and interests of their parents, are inextricably interlinked.Footnote 182 Focusing on interconnectedness, rather than individualism, reinforces Herring's view that ‘[p]eople do not understand their personal lives as involving clashes of individual rights or interests, but rather as a working through of relationships’.Footnote 183 As Herring has described further:
The muddled give and take of everyday family life where sacrifices are made and benefits gained, without them being totted up on some giant familial star chart, chimes more with everyday family life than the image of independent interests and rights.Footnote 184
Children's decision-making capacities are heavily shaped by what Parkinson and Cashmore have called the ‘scaffolding’ – the structure and support – given to them by their parents and other caregivers.Footnote 185 Children's right to decisional privacy, then, is buttressed by an expectation that children's attainment and enjoyment of this right will be interconnected and interdependent with the exercise of parental rights and responsibilities.Footnote 186 The model envisaged is a ‘participatory and inclusive’ one, premised upon mutual respect between children and parents.Footnote 187 It would be ‘obviously awkward’, as Nedelsky has noted, to conceptualise the parent-child relationship in circumstances of conflict as ‘essentially one of competing interests to be mediated by rights’.Footnote 188
The theory of children's decisional privacy presented in this paper appreciates that, in light of children's evolving capacities, there is no ‘one-size-fits-all’ approach. In some circumstances, parents will be solely responsible for making decisions about their children's best interests; in others, parents and children will collaborate to make such decisions, including through shared-decision making frameworks; and perhaps most unnervingly, there will be circumstances where parents must cede decision-making authority to their children.Footnote 189 These interactions between children and their parents will be regulated by the range of social norms that operate within families, or what Eekelaar has called the ‘internal morality’ of family life.Footnote 190
A theory of children's decisional privacy is attended by the challenge of filling an ‘interpretive void’ to determine its meaning and scope, which is ‘ultimately an act of persuasion’.Footnote 191 This paper strives to construct a conceptual framework for understanding and giving effect to children's right to decisional privacy, while being attune to ‘the diverse, overlapping, and potentially conflicting interests’ of the ‘interpretive community’Footnote 192 – those who have an interest in the meaning and value of this right in various contexts. In the final Part of this paper, I apply the theory of children's decisional privacy for illustrative purposes to one context: children's involvement in decision-making about their future care arrangements following parental separation.
5. From theory to practice: a case study of private family law proceedings
Private family law proceedings under the Children Act 1989 provide a rich case study for considering how a theory of children's decisional privacy might apply in practice, for they draw out the tensions between children's rights, parental responsibilities, and state duties in relation to children's welfare or best interests. These tensions, I suggest, lie at the core of understanding children's decisional privacy.
(a) A parental obligation to consult
Disputes between parents about their children's upbringing are ripe to arise when the parental relationship breaks down. At this point, a patent conflict between children's rights and parents’ rights and duties emerges,Footnote 193 and ‘the concept of children's rights will probably have little influence over parents’ plans for their own future lives’.Footnote 194 ‘Parental responsibility’ is defined in the Children Act 1989 as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’.Footnote 195 The Act notably omits from that concept any express obligation upon parents to consult their children about significant matters affecting them, such as with whom children will live, spend time or otherwise have contact following parental separation.
Children's meaningful exercise of their decisional privacy rights in this context might manifest in children receiving ‘appropriate direction and guidance’ from their parents to express their views about their future care arrangements. This could be implemented through a legislative obligation imposed upon parents to consult their children, in the exercise of parental responsibility, as exists under Scottish law.Footnote 196 The process itself would involve support systems, such as guidance from lawyers, guardians and other professionals.Footnote 197 It would also be fluid, rather than a singular event,Footnote 198 and its parameters influenced by each child's age and capacities, and the nature of the decision to be made.Footnote 199 Applied in this way, the theory would encourage parents to understand their role as ‘facilitators and advocates rather than controllers’ of children,Footnote 200 and to give their children ‘the respect given to adults by listening to them seriously’ in relation to a matter that so significantly affects their lives.Footnote 201
(b) Children's participation in private family law proceedings
For those private family law disputes that cannot be resolved without court involvement, a theory of children's decisional privacy would operate within the current legal framework of the Children Act that seeks to protect and promote children's welfare. Section 1(1) of the Children Act 1989 provides that ‘the child's welfare shall be the court's paramount consideration’ when a court determines any question with respect to a child's upbringing. Relevantly, when the court is considering whether to make, vary or discharge a ‘child arrangements order’,Footnote 202 it must have particular regard to various matters, the first of which is ‘the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)’.Footnote 203
Children's views can be obtained in a number of ways in private family law proceedings. Most commonly, a welfare report is prepared by the Children and Family Court Advisory and Support Service (Cafcass), Cafcass Cymru, or a local authority social worker.Footnote 204 Where such a report is prepared, the relevant officer usually meets with the child to assess the child's views and convey those views to the court in the report.Footnote 205 A child can be made a party to proceedings,Footnote 206 although this rarely occurs, as it is ‘a step that will be taken only in cases which involve an issue of significant difficulty’.Footnote 207 Separate representation of the child through the appointment of a children's guardian is thus uncommon in practice.Footnote 208 The direct evidence of children is also ‘seldom heard or rarely available’,Footnote 209 in light of a perceived presumption against children giving evidence in this context.Footnote 210 The practice of judges meeting with children is yet to be fully embraced, and in any event, cannot be used by judges as a means of obtaining evidence of the child's views and wishes.Footnote 211
Research has explained the value of children participating in private family law decision-making by being given the opportunity to express their views and having those views taken into account in the formulation of post-separation parenting arrangements.Footnote 212 Yet research has also found that children feel marginalised by family law system processes,Footnote 213 and that ‘too often the voices of children go unheard in the court process or are muted in various ways’.Footnote 214 As explained in Part 3 above, children's right to decisional privacy entails children's meaningful participation in decision-making about matters that affect them, consistently with their evolving capacities and appropriately guided and assisted by their parents. In the next section, I propose four means by which a theory of children's decisional privacy may be implemented by courts to improve children's experiences of participation in private family law proceedings.Footnote 215
(c) Making children's decisional privacy rights a way of thinking for judges
(i) Conceptualising the issues ‘through the eyes of children’Footnote 216
Children whose parents are involved in entrenched private family law disputes before the courts are ‘the innocent victims of other people's quarrels’.Footnote 217 The task for the judge who adopts a children's rights approach to decisional privacy is to frame the proceedings ‘through the eyes of children’.Footnote 218 As Baroness Hale of Richmond observed in Williamson:Footnote 219
This is, and always has been, a case about children, their rights and the rights of their parents …. Yet there has been no one here … to speak on behalf of the children. … The battle has been fought on ground selected by the adults.
The court's assessment of the child's welfare, which, as noted above, includes the requirement to consider any ascertainable wishes and feelings of the child (in the light of the child's age and understanding),Footnote 220 requires the judge to conceptualise the issues for determination from the child's perspective.Footnote 221 Otherwise, there exists a real risk that adults will use talk of ‘children's rights’ as a proxy to speak on the child's behalf,Footnote 222 without representing the child's best interests, because those interests have not been adequately informed by the child.
(ii) The UNCRC as a legal and normative framework
A children's rights approach to decisional privacy also encourages judges to use the UNCRC as an express legal and normative framework to guide decision-making. The UNCRC has been ratified by the UK but has been incorporated expressly by statute by Scotland only.Footnote 223 Nonetheless, this international convention has been recognised as relevant for the purposes of resolving ambiguity in domestic legislation; guiding the development of the common law; and also to ‘proclaim, re-affirm or elucidate … the nature and scope of those fundamental rights’Footnote 224 that are guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 via the Human Rights Act 1998.Footnote 225
A recent study by Gilmore of the use of the UNCRC in family law cases in England and Wales found that Article 12 was most frequently cited; and that it was often used by judges and counsel to emphasise the importance of taking into account the child's wishes and feelings, and occasionally as a benchmark against which to assess domestic processes for obtaining children's views.Footnote 226 However, Stalford, Hollingsworth and Gilmore have observed that court judgments contain ‘limited, often distinctly disempowering approaches to children's rights’.Footnote 227 The extent to which judges are willing and able to engage with understandings of children as rights-bearers is, as Dworkin has noted, ‘grounded in [the judge's] own convictions’.Footnote 228
(iii) Child-friendly court procedures
A commitment to enabling and protecting children's decisional privacy rights – through which children can exercise and experience autonomy – also requires a commitment to ensuring the ‘material and institutional circumstances’ of autonomy.Footnote 229 These circumstances are the means by which children can actively and meaningfully participate in private family law proceedings,Footnote 230 so that judges are able to reason from children's ‘lived experiences rather than in abstract, categorical terms’.Footnote 231 Put differently, ‘child-friendly’ court procedures are a means of facilitating children's decision-making autonomy.Footnote 232
A children's rights approach to decisional privacy requires that court procedures be ‘accessible and child appropriate’, taking into account ‘child friendly information, adequate support for self-advocacy, appropriately trained staff, design of court rooms, … [and] clothing of judges and lawyers’.Footnote 233 A persistent obstacle to embedding children's meaningful, direct participation within the institutional culture and structures of the courts is inadequate resources, infrastructure and support systems for children.Footnote 234
(iv) Judicial communication that ‘makes sense to the person most closely affected’Footnote 235
The significance of judicial communication to children's decisional privacy rights derives from the argument that, unless children can experience the conditions under which their voice is expressed and heard – that is, unless the decision-making process is sufficiently ‘child-friendly’Footnote 236 – then children's substantive right to decisional privacy will be ineffectual. The welfare principle in section 1(1) of the Children Act 1989 requires ‘not just the elevation and consideration of children's best interests, but also a process by which such decisions may be justified and effectively communicated to children’.Footnote 237 Judges in private family law proceedings must recognise children as one of the key audiences of their judgments.Footnote 238 This could be achieved through a judgment written using a structure and language appropriate for the age and developmental stage of the child(ren) the subject of proceedings, or one that includes an abridged ‘child-friendly’ version.Footnote 239
An excellent, and rare, example is the judgment in A (Letter to a Young Person).Footnote 240 Justice Jackson published his decision in the form of a letter to the 14-year-old young person, which employed age-appropriate explanations of the law, and of Justice Jackson's reasoning, and explained to the young person that Justice Jackson was writing to him because ‘[t]his case is about you and your future’.Footnote 241 Recent reforms to Scottish law take this ‘innovation in judicial writing’Footnote 242 a step further, by requiring courts that make orders in relation to parental responsibilities (including orders about with whom a child is to live and have contact) to ensure that such orders are ‘explained to the child concerned in a way that the child can understand’.Footnote 243
This Part has contextualised the theory of children's decisional privacy developed in this paper, suggesting how it may operate in practice in private family law disputes. However, I envisage that the conceptual model that I have advanced for recognising and respecting children's decisional privacy rights could apply just as robustly to other areas involving children, including child protection, medical treatment, youth justice, and education. I hope that this paper inspires further work that critically evaluates the extent to which the theory may operate or be implemented in law or policy in these other contexts.
Conclusion
The theory of children's decisional privacy developed in this paper challenges the existing power dynamics between children, their parents and the state, with a view to enhancing children's ability to participate effectively in decision-making processes about matters that affect them. At a policy level, the challenge lies in progressing children's status under the law – most critically, by ensuring that children have a meaningful opportunity to express their views and to be heard – in such a way that the notion of ‘children's rights’ does not become a rhetorical proxy for ‘parental interests’.Footnote 244 According to the CRC Committee, overcoming this challenge requires ‘dismantling the legal, political, economic, social and cultural barriers that currently impede children's opportunity to be heard and their access to participation in all matters that affect them’.Footnote 245 Dismantling these barriers may prove a formidable task, requiring as it will countering the prevailing assumptions about children's incapacity, vulnerability and dependence. Most vitally, the CRC Committee has said that ‘making reality of the human rights of children … needs to engage all sectors of society and, of course, children themselves’.Footnote 246 If this is so, then ultimately, translating a theory of children's decisional privacy into practice will require engendering a stronger commitment from adults, who are key to upholding and giving effect to children's rights.
