Busting Myths About Children’s Capacity to Meaningfully Participate

The Society for Children and Youth of BC (SCYBC) recently published a series of research papers on child capacity in the context of children’s participation rights [Note 1]. The papers examine capacity generally and in four specific contexts: health care, mental health, family law, and child welfare and adoption.

Why does this matter? Traditionally, we have tended to assume that a child must first demonstrate sufficient “capacity” before being permitted to meaningfully participate in decisions affecting their life. And capacity has often been assessed primarily through the lens of cognitive ability.

The SCYBC reports challenge both assumptions.

I found them eye-opening. Although I have studied children’s meaningful participation for some time, I realized that I had been looking at capacity largely through the lens of my own experience in the legal system. The research paints a much more nuanced and multidimensional picture.

It also busts some persistent myths.

Myth 1: Capacity depends on cognitive ability

There is no universally agreed-upon definition of capacity. Importantly, capacity encompasses more than cognitive or developmental ability. It also includes “legal capacity” which recognizes that a child is a person with rights.

Developmental capacity itself has multiple dimensions: physical, relational, emotional and cognitive. It evolves over time, at different rates, and within the complex contexts in which a child lives. A child’s capacity to participate may also be different from their capacity to make a particular decision.

Most importantly, the UN Convention on the Rights of the Child (UNCRC) does not require a child to pass a cognitive test before having a right to be heard. Article 12 requires only that a child be “capable of forming his or her own views.” [Note 2]

That is a significantly different starting point.

Myth 2: Age tells us whether a child has capacity

Age alone is not a reliable indicator of capacity.

The UNCRC emphasizes that children can form views from a young age, even when they cannot yet express those views verbally. Adults, including professionals, tend to underestimate children’s capacities or to rely too heavily on age while overlooking their rights and other developmental factors.

In family law, I still hear variations of the statement that children can “decide with their feet” once they turn 12. This is an oversimplification of both the law and the social science research.[3]

There is no magical birthday on which a child suddenly acquires capacity.

Myth 3: Children must prove they have capacity before they can participate

This may be one of the most important shifts in thinking.

The research supports a presumption that children have capacity to express their views and preferences. As the introductory report puts it: “It is not up to the child to first prove her or his capacity.” [Note 4]

In other words, perhaps we have been asking the wrong question. Instead of asking, “Does this child have the capacity to participate?”, the family law report suggests asking: “How can we support this child to uphold their right to participate? What changes do our practices require?”

That reframing shifts responsibility from the child to the adults and systems around them.

Myth 4: “Best interests” should always trump participation

The best interests of the child remains a fundamental principle, but it should not eclipse the child’s separate right to be heard.

The two rights are distinct but interconnected. Problems arise when adults use their own assessment of a child’s best interests to justify excluding the child from participation, particularly when “best interests” are understood primarily through the perspectives of parents or other adults.

A determination about what is best for a child should be informed by the child, not used as a reason to silence them.

Myth 5: Parents can adequately represent their children’s views

Parents usually know their children extremely well and play an essential role in their lives. But that does not mean a parent’s perspective is the same as the child’s.

This is particularly evident in family law. Parents may be in court precisely because they disagree about what is best for their child. Relying exclusively on the parents to communicate the child’s views in those circumstances can leave the person most affected by the decision without an independent voice.

Myth 6: We protect children from family conflict by excluding them

The instinct to protect children from the turmoil of family breakdown is understandable. But protection and participation do not have to be in conflict.

The family law report cites research confirming that greater harm can result from excluding children, hindering their participation and disempowering them. [Note 5] Children generally know that important decisions are being made about their lives. Preventing them from expressing their views does not necessarily protect them from the conflict and may increase their distress.

This does not mean children should be forced to participate. Participation is a right, not an obligation. Children need information about their participation rights, appropriate choices about whether and how to participate, and supports that allow them to communicate in ways that work for them.

A different starting point

Perhaps the most important message from these reports is that we need to reconsider where we place the burden. Rather than requiring children to demonstrate that they are sufficiently mature, articulate or cognitively capable to earn a place in decisions affecting them, we might begin with a presumption that they have a right to participate, and then ask what we need to do to make that participation meaningful.

That is more than a subtle change in language. For lawyers, judges, mediators, parenting coordinators, health professionals, social workers, parents and others who make decisions affecting children, it invites us to examine our own assumptions, practices and systems.

The question is no longer “Is this child capable of participating?” It is “What are we doing to make their participation possible?”

The SCYBC reports are well worth reading.

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Notes

[1] The research was funded by the Office of the Representative for Children and Youth of BC (RCYBC). The SCYBC series includes an introductory report on child capacity and participation and reports addressing health care, mental health, family law, and child welfare and adoption.

[2] Article 12 of the UNCRC. As the research notes, meaningful expression may include non-verbal forms of communication such as play, body language, facial expressions, drawing and painting.

[3] The misconception may arise in part from references to age 12 in BC’s Child, Family and Community Service Act, many of which concern procedural rights such as notification or service of documents.

[4] UNCRC Article 12, UN General Comment 12.

[5] For example, the report cites Jackson and Martinson (2020), Implementing Children’s Participation Rights in Family Law and Child Welfare Court Proceedings: A Literature Review, (prepared by the FREDA Centre, School of Criminology, Simon Fraser University, for the BC Office of the Representative for Children and Youth), and important research by Rachel Birnbaum and Nicholas Bala.