Evolving capacities of children
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Evolving capacities of children

As children grow up, their capability to discern and make decisions increases. This is termed as the evolving capacities of children because, unlike adults, children's capacities are not presumed to be fully developed but are at a stage of evolvement. However, this does not mean that children should be ignored or, worse, deemed incompetent to take part in the decision-making process.

On the other hand, incompetence is very relative and can increase or decrease as time goes by or in particular situations as well. In the past, the right to vote was not applicable for children only but for women as well. Therefore, incompetence is somewhat an artificial concept that people use to fit social needs and customs. For example, as women's rights were recognised, women were no longer considered to be incompetent, thus rendering their previous incompetence a mere artificial legality.

Cultures and experience help shape competency. Therefore, not all children can be deemed to have the same level of competency or to acquire it at the same time. The concept of evolving capacity is central to the Convention on the Rights of the Child, which recognises children as "active agents in their own lives, entitled to be listened to, respected and granted autonomy in the exercise of rights, while also being entitled to protection in accordance with their relative immaturity and youth" (Gerison Lansdown, The Evolving Capacities Of The Child, Unicef Innocenti Research Centre, 2005, Italy, ix). This means that children should not be disregarded, should not have their opinions stifled but should be treated as individuals capable of coming to a decision according to their maturity and understanding.

But what about parental responsibilities? Is there a conflict between parental responsibilities and the child's evolving capacities? No, there is not. Parental responsibilities do not entail ownership over the child but are there to provide appropriate direction and guidance to the child while fully respecting the child's evolving capacities as stated in article 5 of the Convention on the Rights of the Child. Thus, the child is a subject of rights within the family and the state can intervene if the child's rights are not being safeguarded because, sometimes, some parents' actions or inactions are not always in the best interests of their child. In fact, in the English case of Gillick vs West Norfolk and Wisbech Area Health Authority (1985), Lord Scarman said that "...parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision".

Such a definition of competency, which became known as Gillick competency, takes into consideration the ability of children to reason and it views children not as incapable beings but as individuals with their own rights.

He went on to say that Gillick competency is a question of fact, that is, it cannot be applied to anyone but to that child who exhibits sufficient understanding and intelligence and should, thus, be applied on a case by case basis.

Failure to acknowledge children's evolving capacities is a failure to treat children as individuals in need of dignity and respect. Children's views need to be acknowledged and respected, thus, creating a harmonious balance between adults and children.

Hence, as Gerison Lansdown states, a sliding scale of competency needs to be applied in accordance with the seriousness of the decision. Thus, a decision involving clothing, food, medical procedures, education, religion, work and so on warrant different levels of competency. She adds that the notion of evolving capacities takes into account the transfer of responsibility for decision-making from adults to children as they acquire competence. And competence is not acquired by reaching a certain age. In fact, the Convention on the Rights of the Child does not mention an age of competence; and, all over the world, children of different ages reach different levels of competence for different things at different times.

So why stifle children's competence just because they did not reach a certain age? Age as a measure of competence is a relative term. In Zimbabwe, by the age of 10 years, Tonga children are expected to build their own houses and run a household in the absence of an adult. This is so because responsibility and capacity varies from one society to another.

The concept of evolving capacities challenges the traditional attitudes towards children. Children should no longer "be seen but not heard" because, nowadays, the concept of evolving capacities is recognised in the Convention on the Rights of the Child.

The author is a lawyer and a published author with a special interest in family law and child law.

annmarie.mangion@gmail.com

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