Meaningful Participation of Children and Youth in Justice: Voice Is Not Enough

Much of the work of the BC Family Justice Innovation Lab (FJIL) has focused on our Youth Voices initiative. Coming out of an intensive design process centering the lived experience of young people, the Youth Voices Initiative aims to improve the well-being of children and youth experiencing parental separation. An important lesson learned was that while the family justice system formally acknowledged the importance of the “best interests of the child”, and there were some programs that sought the view of kids about decisions which affected their lives, the kids’ experience was often that it was “too little, too late”. We knew voice was important but was it enough?

At the heart of this work is Article 12 of the United Nations Declaration of the Rights of the Child (UNCRC). Note 1. It defines children’s right to have their views given due weight. It is deeper and richer than you might think.

This is a right of the child, not a privilege offered by adults.

The inspirational work of Professor Laura Lundy (Queen’s University Belfast) transformed our thinking and approach. Professor Lundy’s original study in 2005 identified lack of compliance with Article 12 – limiting interpretation to “voice” alone. In the study, young people consistently reported frustration that their views were not being listened to and taken seriously. Professor Lundy found that phrases like “voice of the child”, “the right to be heard” and “the right to have a say” were imperfect descriptions of the fullness of what Article 12 intended to address. Something was missing. In response, she proposed a model for rights-compliant children’s participation which suggests that implementation of Article 12 requires consideration of four inter-related concepts:

• SPACE; Children must be given the opportunity to express a view
• VOICE: Children must be facilitated to express their views
• AUDIENCE: The view must be listened to
• INFLUENCE: The view must be acted upon, as appropriate

This model changed the global understanding of child participation. It has been used by the United Nations, governments, national and international organizations and other agencies / NGO’s in many different social contexts including education, policy development, city planning, health and justice.

Since then, Professor Lundy has deepened and enhanced the model to require careful process design:

SPACE: Duty bearers must actively create a safe and inclusive space for the child to express their views. Kids will not often insist on expressing views on their own.

Also, the right to express a view is not dependent on the child’s age or maturity (those factors are relevant ONLY to weight).

VOICE: This is a right of the child and not a duty (some will choose not to express their view). Also, the child must have a choice in the mode of expression and they may need help to form and express their views.

AUDIENCE: This may be the most crucial aspect. The rights holder (child) needs to know that the actual duty bearer (decision-maker/person with influence over their life) listens to and hears their views. This may require formal channels of communication. Note 2

INFLUENCE: The child’s views must be given due weight in accordance with the age and maturity of the child. This highlights children’s autonomy and self-expression. It is not about the child’s incompetence and need for socialization. The duty bearer(s) must give feedback to the child about the extent of influence they have had. There should be a formal response. Note 3.

The Lundy Model could be the key to unlock meaningful system transformation for kids in family justice in BC. Attention to thoughtful process design both in and out of court could improve well-being of kids and their families. The work of FJIL, in collaboration with Access to Justice BC and the Transform the Family Justice System Collaborative, aims to shift our attitudes, processes and tools to that end.

Voice is good but not enough. Consideration of all four aspects of the Lundy Model is required.

Excellent resources include:

• Ireland’s National Strategy on Children and Young People’s Participation in Decision-Making 2015-2020
• Ireland’s National Framework for Children and Young People’s Participation in Decision-making (which includes helpful checklists and feedback forms)
• Professor Lundy’s video presentation to the Early Childhood Voices Conference 2020

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Note 1: Canada officially ratified the UNCRC in 1991.

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Note 2: Conflict resolution professionals will recognize the need for “active listening” i.e. listening to understand not to defend. In addition, thoughtful design (or perhaps co-design) of conflict resolution processes will be critical. Professor Lundy recommends “Creating a children’s plan with children” Kotsanas, Smith, MacNaughton research report 43 May 2014 which includes good examples of kids’ views being used in planning decisions in Melbourne Australia.

Note 3: In other jurisdictions, Judges have chosen to write their decisions involving children in the form of a letter to the child which specifically details the child’s views and how they were considered and acted on, if appropriate.