Challenging competency and capacity? Due weight to children’s views in family law proceedings

Galvanised by the UN Convention on the Rights of the Child, many jurisdictions have introduced or strengthened children’s rights to participate in family law proceedings. Yet, the research and legal literature continues to show difficulties in implementation. According to the literature, decisions makers frequently view children as insufficiently competent or lacking in capacity to participate in proceedings or for much weight to be given to the children’s views. This article unpicks the concepts of competence and capacity, both in relevant literature and reported case law from Scotland. The article asks three questions: What are meant by competence and capacity? How are they used? Do the concepts enhance or detract from children’s participation rights? The article finds that competence is often casually used in the literature, alternative terms are used in reported case law (such as maturity), and judging capacity remains problematic in both law and practice. The article concludes that both concepts detract from children’s participation rights, as the concepts suggest competence and capacity are inherent to the child rather than contextual and relational. If the concepts were to be used, they should be subject to more critique and precise definition. However, children’s participation rights are more likely to be furthered by alternatives, such as fresh ideas about recognising and supporting people’s legal capacity within the UN Convention on the Rights of Persons with Disabilities.