The unheard voices and capacities of children involved in family law proceedings: The development of an innovative rights-based standard of practice to ensure the meaningful participation of children

Public Summary: The Unheard Voices and Capacities of Children Involved in Family Law Proceedings: The Development of an Innovative Rights-Based Standard of Practice to Ensure the Meaningful Participation of Children

The United Nations Convention on the Rights of the Child (UNCRC, 1989) is a human rights treaty that aims to ratify the rights of children. Extensive research emphasizes that there are many ambiguities between language and practicality in the application of the UNCRC. Specific articles pertaining to this language and were included in this research are Articles: 3,5,9 & 12. These provisions, and others, reference or infer the importance of a child’s capacities and participation or discuss children’s best interests. However, there are still ambiguities in terms of what capacity or best interests of the child entails. How to assess or consider a child’s capacity or best interests is also noticeably limited within literature and practice. The UNCRC emphasizes participation, but that practical application piece is still limited, this is especially true for children under the age of 12. One reason for this participation issue is the assumed lack of capacity of children under the age of 12, this research highlights the requirement of systemic, ideological change in the way society views children. This research aimed to shift towards recognizing children as rights-holders and providing them with the space, audience, considerable influence to have their voices heard and creating a standard that would actualize their participation.
The aim of the present study has thus intended to, look for gaps and limitations within literature and relevant research and to gather the perspectives of professionals and children through qualitative interviews. Develop a rights—based standard to uphold the rights of children throughout any evaluation in family law proceedings and determine the criteria that should be embedded in a new standard of practice. To introduce a transdisciplinary approach to meet the best interests of children. And shift ideologies surrounding children’s presumed incapacity. These research aims led to the following main research question: How can relevant literature regarding rights and capacity, transdisciplinary expert interviews, and the opinions of children inform the creation of a rights-based standard to support the unique capacities of children and ensure their meaningful participation in family law proceedings?
The methodological approach of this study combined literature analysis, and qualitative interviews with children between the ages of 6 and 12, and experts in the field(s) of family law and child development.
The findings of this research maintained that there are limitations and gaps in current family law proceedings and custody evaluations relating to the participation of children under the age of 12. The findings also highlighted children are extremely capable of understanding language and concepts pertaining to their own rights, participation and capacities. The literature and qualitative research efforts contributed to the creation of a new standard of practice, referred to in this research as Qualitative Understandings Informing Notions of Capacity and Children’s Rights (QUINCCR- Standard). This standard of practice upholds the rights of children in custody evaluations, and adds a practical layer to the UNCRC. This research and its findings will contribute to the body of knowledge surrounding children’s unique capacity levels, challenge the ideologies of children as ‘incapable’ and instead uphold children as citizens with agency and actualize their rights, voices, participation, and capacities.