Our member, Prof. Georgina Dimopoulos (Swinburne University of Technology, Australia) talks about her book, Decisional Privacy and the Rights of the Child (Routledge, 2022).
This book presents a new conceptual model for enabling and listening to children’s voices in decision-making processes. It draws on the legal and normative framework of the United Nations Convention on the Rights of the Child 1989, and extends the work of other children’s rights scholars, to articulate a right that has not been adequately theorised: a child’s right to decisional privacy. Decisional privacy gives the individual the ability to make decisions that contribute to defining their identity, without unjustifiable interference from other individuals or the state.
To illustrate how this conceptual model may apply in practice, the book embeds a theoretical account of children’s right to decisional privacy into one context – judicial proceedings concerning medical treatment for children experiencing gender dysphoria. In so doing, the book addresses a significant gap in understanding the interconnections between privacy, family law and children’s rights. But the conceptual model developed in this book could apply to a range of areas beyond family law and medical treatment, including child protection, child safety, education and youth justice.
This book argues that recognising a substantive right to decisional privacy for children requires procedural rights that facilitate children’s meaningful participation in decision-making about their lives. It also argues that, as courts have increasingly encroached upon decision-making in relation to medical treatment for children experiencing gender dysphoria, they have denied the decisional privacy rights of transgender and gender diverse children.
I wrote this book because children’s ability to participate meaningfully in decision-making processes, and adult decision-makers listening to and hearing children’s voices, are persistent and ongoing areas of concern, in a range of jurisdictions both within and beyond Australia. Often starkly absent from public discourse and debate are the voices of children themselves. Children’s activism in response to the effects of climate change, and the impacts of prolonged school closures and lockdowns in response to the COVID-19 pandemic, are but two examples that underscore the importance of grappling with how to engage children more meaningfully in decision-making processes and how to better enable and listen to children’s voices.
I would like this book to:
A question that remains the subject of debate, and impacts on concerns about children having and exercising a right to decisional privacy, is whether a child’s views can ever be determinative of their best interests. Fortin (2009: 236) has argued that the child’s right under Article 12(1) of the CRC ‘is about consultation and participation, not about self-determination’. Judicial statements from Australia and the UK echo this sentiment. English courts have noted that the child’s right under Article 12 is ‘to have the opportunity to express [their] views and to be heard, not a right to self-determination’ (Re T (Abduction: Child’s Objections to Return) [2000]); and that ‘taking account’ of the child’s views ‘does not mean that those views are always determinative or even presumptively so’ (Re M (Children) (Abduction: Rights of Custody) [2007]). Similarly, the High Court of Australia has held that children’s views ‘are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests’, such that they are not determinative or decisive in and of themselves. However, the High Court has added that ‘it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight’ (Bondelmonte v Bondelmonte (2017)).
Indeed, Article 12(1) of the CRC does not necessarily require that children’s views be given ‘determinative force’ (Eekelaar and Tobin, 2019: 199). Respecting a child’s right to decisional privacy is not the same as giving the child the ultimate authority to decide, in relation to each and every matter affecting them, what is in their best interests. As Baroness Hale of Richmond observed: ‘As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what [the child] wants’ (Re D (A Child) (Abduction: Rights of Custody) [2006]). The child’s right under Article 5 of the CRC to receive appropriate parental direction and guidance, consistent with the child’s evolving capacities, anticipates that in practice, given children’s lack of capacity to determine their best interests in relation to various matters, parents will regularly make decisions on behalf of their children.
However, to say that ‘children have a voice, not a choice’ is to misconstrue children’s right to decisional privacy. The view advanced here – supported by the text of the CRC and numerous scholars – is that a child’s views will, in circumstances where the child is of sufficient understanding and maturity in relation to a matter affecting them, be determinative of the child’s best interests (Tobin, 2015; Lundy, 2007; Eekelaar, 1994; Daly, 2017). The child’s own views must be respected in these circumstances, even when they conflict with the views of the child’s parents. This is because Article 5 of the CRC implies ‘a transfer of responsibility for decision-making from responsible adults to children, as the child acquires the competence and … willingness to do so’ (Lansdown, 2005: 4). The principle of evolving capacities, as the CRC Committee (2006) has explained, ‘should be seen as a positive and enabling process, not an excuse for authoritarian practices that restrict children’s autonomy and self-expression’. Once a child has developed the capacity to effectively claim and enjoy their right to decisional privacy independently of their parents, then the child no longer requires the right to appropriate parental direction and guidance.
In various contexts, including healthcare and child protection, parents, children and practice professionals engage in shared decision-making. The child is provided with the framework or scaffolding to participate in decision-making to the degree that is considered appropriate for the child’s maturity and capabilities (Lundy, 2018). Research has identified various concerns with children’s participation in this context, related to the dominant perception of children as irrational, dependent and vulnerable. These include adults underestimating children’s competence; children feeling that their views are ignored or sidelined by adult decision-makers; and a prevalent protectionist instinct, being to shield children from the ‘burden’ of decision-making and potential exposure to distressing or sensitive information (Moran-Ellis and Tisdall, 2019; Toros, 2021; Duncan, 2018). A children’s rights approach to decisional privacy accords with a ‘situational’ perspective on shared decision-making to the extent that it ‘recognises children’s right to have a say, without necessarily having full control over decision-making’ (Coyne and Harder, 2011: 316). However, it proposes that the protective role of the child’s parents and practice professionals cannot justify restricting or interfering with a child’s autonomy when the child is found to have reached a level of maturity to understand and appreciate the consequences of their decision. For adults to engage in ‘best interest-based intervention’ and effectively override the child’s views of their best interests would be neither legally nor morally justifiable (Lundy, Tobin and Parkes, 2019).
The evolving capacities principle under Article 5 of the CRC may therefore challenge parents’ perceptions of their ‘proper’ role. It may even expose parental reluctance to cede their authority on matters where they feel that they know what is ‘best’ for – and know better than – their child. But as Tobin (2016: 64) has observed, ‘[u]ltimately the principle of evolving capacities demands that parents concede that they are not always the sole arbiters of a child’s best interests’. Importantly, however, accepting the child’s views as determinative of the child’s best interests, in circumstances where the child is competent and capable of making an informed decision, does not automatically make the child’s views determinative in relation to what measures will be taken to address the matter. In other words, making the decision and implementing the decision made are two discrete processes. The latter involves a balancing exercise, whereby the impact of the matter on the child must be weighed against the impact on other children and adults involved, and against any other legitimate considerations (Lundy, Tobin and Parkes, 2019).
The model of children’s right to decisional privacy appreciates that, in light of children’s evolving capacities, there is no ‘one-size-fits-all’ approach. In some circumstances, parents will be solely responsible for making decisions about their children’s best interests; in others, parents and children will collaborate to make such decisions. Perhaps most unnervingly, there will be circumstances where parents must cede decision-making authority to their children. These interactions between children and their parents will be regulated by the range of social norms that operate within families: what Eekelaar (2012: 94) has called the ‘internal morality’ of family life.