Law and Children’s Decision-Making

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

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