Barriers to participation


4.3 Formidable barriers prevent or limit children’s participation in legal processes. One of these barriers relates to children’s developmental capacity and is not entirely amenable to improvement. Other barriers are created by the assumptions of an adult legal system about the legal capacities of children to participate and by the processes themselves that were designed by and for adults. This Report has attempted to address these barriers through recommendations that set out what children need to know to deal with the legal process (developmental capacity), how children should be engaged appropriately within the legal process (legal capacity) and how to ensure that the legal process itself does not add to the problem (the adult system).

Developmental and legal capacity to participate

4.4 Formal participation by children in legal processes requires that children understand the process and its requirements, and have the intellectual, emotional and psychological skills necessary to negotiate the process and to persist in their pursuit of a particular goal. Many adults do not have these abilities and have considerable difficulties in dealing with legal processes. However, these difficulties are significantly magnified for children. Indeed, these skills themselves are often associated with levels of development and maturity. Many children are unlikely to have the skills and experience necessary to participate successfully in legal processes without assistance.

4.5 Traditionally, the law has used general assumptions about children’s developmental capacities to decide a particular child’s legal capacity to participate in legal processes. These assumptions applied to all children what may be true of only a few. For example, young children have been traditionally viewed as incompetent to give evidence based on assumptions that they are untruthful, suggestible, prone to fantasy and unable to make accurate and reliable observations about events.[1]

4.6 Assumptions about children’s incapacity mean that some children are by definition ineligible to participate in some legal processes. Current examples include prohibitions on children under 18 years of age being parties to civil actions[2] and evidentiary rules concerning whether children are competent to give evidence and whether their evidence must be independently corroborated.[3] Laws regarding ages of consent for sexual activity[4] and marriage[5] are other instances where age is used to classify children based on assumptions about the soundness of their judgment and their capacities to make fair and accurate assessments of their interests.

4.7 Psychological studies have recently allowed a fuller, more sophisticated understanding of children’s cognitive abilities.[6] They have prompted a re-evaluation of rules regarding children’s capacities to participate in legal processes and focused attention on the individual child rather than on general rules for all children. Such an approach has been adopted in the common law in Australia, following the House of Lords’ decision in Gillick[7] and the High Court’s decision in Marion’s case.[8] In these cases, in the context of medical advice and treatment, the increasing competence of children to make their own decisions was recognised and confirmed at law.

4.8 Variations in developmental capacity do not depend solely on age. Age is a relevant differentiating factor in determining legal capacity to participate in legal processes, but as Deane J noted

[t]he extent of the legal capacity of a young person to make legal decisions for herself or himself is not susceptible of precise abstract definition. Pending the attainment of full adulthood, legal capacity varies according to the gravity of the particular matter and the maturity and understanding of a particular young person.[9]

4.9 Article 12 of CROC embodies this principle of an evolving capacity to participate. It is recognised that children who are capable of forming a view have the right to express that view in all matters affecting them, and to have that view taken into account and given due weight in accordance with the age and maturity of the individual child.

An adult system

4.10 Even where a child has the developmental and legal capacities to participate in legal processes, appropriate participation can be extremely difficult because the processes themselves are not designed for participation by children. Laws and regulations are made and implemented by adults, and the attributes, decision-making processes and language used in legal processes reflect this fact. A number of submissions pointed to the difficulties posed by the current operation of adult-oriented legal and administrative processes in relation to children[10]

[1] See paras 14.15-18.

[2] See paras 13.6-7; cf ages of criminal responsibility at paras 13.4-5, 18.12-20.

[3] See paras 14.16-18.

[4] See para 18.23.

[5] A young person cannot marry until he or she reaches 18. There is provision for court approval for marriage in exceptional circumstances where one of the parties is 16 or 17 years old: Marriage Act 1961 (Cth) Pt II, s 12.

[6] eg see paras 14.19-24 for recent research in the area of children’s abilities to be reliable, accurate witnesses.

[7] Gillick v Norfolk and Wisbech Area Health Authority (1985) 3 All ER 402.

[8] Secretary, Department of Health and Community Services v JWB and another (1992) 175 CLR 215, 293.

[9] ibid.

[10] eg SA Dept of Family and Community Services IP Submission 100.