DR AOIFE DALY

Children’s Competence in Context
Advancing Interdisciplinary Approaches to Practical and Legal Questions
EARLY CAREER FELLOW: SEPTEMBER 2019 – AUGUST 2020

Aoife is Senior Lecturer at the School of Law of the University of Liverpool, specialising in children’s rights, civil and political rights, and family law. She has a background in both law and psychology and much of her research centres around how children make decisions, and how the law reacts to those decisions. Her ISRF-funded project considers children’s ‘competence’ and how the law can take a more evidence-based and rights-based approach with a proper appreciation of context – competence will be different in criminal contexts where children may act under pressure; as opposed to medical matters where they have support to carefully consider different factors.

In 2018 she published a book entitled Children, Autonomy and the Courts: Beyond the Right to be Heard with Brill/Nijhoff. The work compares the distinct prioritisation of personal autonomy in areas such as medical law to the enormous paternalism in other decisions about children (such as where children will live on divorce). It is argued that courts should support and prioritise children’s own wishes to the extent possible – there should be a high threshold to override them.

Aoife is also Deputy Director of the European Children’s Rights Unit at the University of Liverpool, a unit in which participatory research is conducted with children on issues of children’s rights in Europe and beyond. In 2018 she led a team advising the UK Equality and Human Rights Commission on good practice examples of making rights in UN treaties a reality in the UK. She is currently working on projects concerning children’s right to sex education, and how public attitudes to children affect how they are treated. She has two children of her own who frequently assert their autonomy rights, particularly at bedtime.

Abstract

Children’s competence is the fundamental axis around which their legal rights revolve. It is crucial in areas such as medical consent, sexual exploitation and criminal culpability to understand whether children’s views and choices are ‘their own’. Yet there is little agreement on how (or even whether) to measure or understand competence, though it is often cited in various areas of law and practice. Children’s rights are therefore in danger of losing meaning as competence is not understood; and adult/child power dynamics insufficiently recognised. Children’s lawyers, judges, doctors and other practitioners make decisions as to children’s ‘competence’ seemingly in a knowledge vacuum, as theory and evidence appear only to exist in developmental psychology; a discipline which is contested, overly-clinical, and largely impenetrable to outsiders. This study will critique developmental psychology approaches to children’s competence in light of scholarship from childhood, disability and feminist theory; in order to enhance understanding of how children’s competence should be approached in a way which gives full acknowledgement to the importance of context (information, power etc.).

Through theoretical work, case law analysis and interviews with practitioners, the research will consider competence (both general theory and formal practitioner assessments) in light of the complex interactions between neurobiology, social/ familial ties, and practitioner knowledge of developmental psychology; as well as the power structures of institutions such as courts and hospitals. In this way we can uncover how factors may converge to marginalise and even dehumanise the legal child subject in the competence assessment. The project has transformative potential to broaden the traditional confines of approaches to competence; and facilitate an evidence and rights-based theory of ‘children’s competence and context’ to provide an alternative approach for practitioners and for the legal arena. The research will progress the aims of the ISRF by advancing interdisciplinary work in a distinctly under-researched area.

The Research Idea

This research takes as its intellectual starting point the idea that children’s competence cannot be understood as a phenomenon separate from context. It will take a novel and innovative approach by applying critical theory to developmental psychology for the purpose of deconstructing the complicated subject of competence; including from childhood (James and Prout, 1996), feminist (Hunter, 2013; Fineman, 2004) and disability (Clough, 2018; Goodley, 2017) studies. This will be highly beneficial, as it will identify how contextual factors such as relationships and power dynamics are crucial in understanding children’s choices, decisions and other cognitive functions; not only challenging contemporary assumptions about children but broadening understanding of the human condition.

The main theses are: First, children’s competence, if it can be measured at all, can only be properly understood where context (support, information, etc.) are understood. Secondly, practitioners assess children’s ‘competence’ with inadequate (or complete lack of) knowledge of how to do this, and believe that competence is ‘naturally’ possessed or not, rather than a quality which is inescapably defined by interactions with environments. Thirdly, developmental psychology provides theory and evidence about children’s competence, but it is inaccessible and only illuminates a small part of the picture of how to define or understand children’s competence, rather than providing concrete answers. Fourthly, critical scholarship from across disciplines will contribute to a more rounded understanding of how children’s competence should be approached. This can provide a more holistic theory of children’s competence in context to inform practitioners, the legal system, and theorists.

Background

We are at an important juncture in childhood studies and in children’s rights. Theorists are calling for real-world contextualisation of the factors which affect children’s experiences (Vandenhole et al., 2015). Such critiques have in a small amount of instances referenced children’s competence and the problematic role which developmental psychology has had in shaping approaches to it (see e.g. Buss, 2009; Tisdall, 2018). Yet none have sought to combine different disciplinary approaches to go beyond mere critique to propose alternative approaches.

Greater prominence has been given of late to matters which revolve around child competence, such as ‘sexting’, youth radicalisation and voting age, which makes the lacuna around child competence all the more stark. My previous work (Daly, 2018a/b) has shown that there is a staggering lack of effort to understand children’s competence outside of medical law. Courts and practitioners either mention/ consider competence in passing, ignore it altogether, or in a tiny number of cases invite a psychologist to give evidence about a child’s competence. Psychology’s normative and one-dimensional approach to competence is rarely questioned in these contexts.

Research into medical consent (Cave and Stavrinides, 2014; Cave, 2013; Herring, 2016; Hein et al., 2015a/b) is of great relevance to, yet entirely ignored by, other areas of the law (e.g. criminal justice, child protection). This medical research must be harnessed for other areas, but also requires enriching with interdisciplinary analysis to ensure alternative perspectives such as feminist theory (rather than simply clinical ones) are considered in the application of competence tests.

The Focus

This research will establish an evidence and rights-based approach to children’s competence and the law, one which is grounded in the importance of context. The evidence will be derived from conducting a holistic interdisciplinary examination of the matter of children’s competence. It will span clinical research in developmental psychology, practitioner approaches to assessing capacities, and case law. Importantly however it will merge this with critical theory across disciplines, particularly those which emphasise 1) childhood as a social construction (James, 2003); 2) relational approaches as crucial to understanding autonomy (Friedman, 2014); and 3) competence/capacity as something which must be supported rather than as a fixed quality (Clough, 2017). It will further be supplemented with real world evidence through interviews with practitioners.

This holistic and interdisciplinary approach constitutes a fresh examination of a complex and under-researched question: how can/should we understand children’s competence? I have an academic background in both law and psychology, and have recently produced an internationally celebrated monograph which takes a critical and interdisciplinary approach to the treatment of children’s wishes in the courts. I am therefore uniquely placed to conduct the rounded and interdisciplinary inquiry necessary to move the narrative forward, and to shift thinking about children’s competence and how it should be understood by the law.

Through engaging with varied understandings about competence, power, and relationality from different disciplines and building on these, the research will challenge assumptions about children’s competence; highlighting structural and institutional issues which serve to ‘otherise’ children and diminish their experiences and abilities.

Theoretical Novelty

The research will generate original data, using critical theory to investigate novel approaches to understanding children’s competence. This will unpack unequal power dynamics between adults and children in their interactions, and therefore create new avenues of conceptual interdisciplinary dialogue between childhood, feminist and disability theory, as they relate to developmental psychology’s competence narratives.

The sociology of childhood has brought a rich understanding of children as active agents (Archard, 2004), and neuroscience has brought greater insights into the workings of children’s minds (Giedd, 2004). One conceptual innovation of the proposed project is to consider, for the first time, the relevance of these varied strands of contemporary theory and knowledge to child competence in a holistic way.

Even in the medical law arena there is an absence of child-specific understandings, so adult capacity laws are used to measure children’s competence (Cave, 2013). A novel conceptual approach of this project is that it will not just bring medical law knowledge to other areas of the law, but also fill the child competence lacuna in medical law itself, whilst bringing interdisciplinary perspectives to mitigate the overly clinical approach in medical law.

An investigation into everyday determinations of children’s competence requires a consideration of multiple and intersecting power, environmental and interpersonal dynamics – the contexts which inevitably impact on how and what children know and understand, and on adult perceptions of this. The overall aim of the project is to significantly challenge mainstream ideas and practices regarding children’s competence, making it controversial and innovative research.

Methodology

This research will utilise a multi-faceted socio-legal approach to varied data, integrating theoretical arguments and empirical evidence throughout. The data investigated in this manner will include: field research in developmental psychology; theories in critical studies and case law in which children’s competence is considered. The research will go beyond single discipline considerations of questions of children’s competence, asking: how can a theory of children’s competence be developed which is based on evidence, interdisciplinary approaches, and children as rights-holders? In-depth examination will be conducted into the interaction of theories, ideas and findings from varied disciplines, and both the intersections and clashes amongst them. This will create new meanings, and will give a holistic picture of the relationships between factors which must be considered for a new theory of children’s competence, one which is based on context.

These methods will be enriched by 40 qualitative interviews to be conducted with UK practitioners who test/consider children’s competence in their work (ten each with lawyers, judges, psychologists and doctors) to examine their processes. Narrative interviews will be employed in recognition that professionals produce narratives about the self and identity drawing upon experiences, understandings, and stories through which they interpret the world and their place in it (Lawler, 2002). This will give proper acknowledgement to adult perceptions of children across various types of practice (law, medicine etc.). The data analysis will involve structuration theory (Giddens, 1991) to uncover (un)conscious needs and structural properties which help explain why agents act as they do.

Work Plan

The programme of work for the 12 month award period is as follows:

Months 1-3: Literature review of research and policy documents. Sources will include: empirical field research; theories in critical studies and case law in which children’s competence is considered. Initiate socio-legal analysis of this material. Gain ethics approval from University of Liverpool Research Ethics Committee for fieldwork phase (includes preparation of all relevant materials e.g. interview schedules, consent forms etc.). Write book proposal Children, Competence, Context: Understanding Children’s Abilities for Legal Purposes and submit to Oxford University Press.

Months 4-6: Continue socio-legal analysis of the material. Draft concept paper on children, competence and context, submit to International Journal of Children’s Rights. Recruit participants for fieldwork phase, and begin to conduct field research.

Months 6-9: Complete field research; transcription of interviews; begin structuration theory analysis of interviews. Start to design a research proposal for interviews with children who have had their competence considered/assessed – this research will be conducted after the fellowship (2022). Draft book chapter on Children’s Competence and Relational Theory.

Months 10-12: Continue structuration theory analysis of interviews; triangulate interview data with research and policy documents. Draft fieldwork research as a journal article for Childhood. Begin drafting practitioner handbook for understanding children’s competence in context. Produce policy briefing for policy makers in the area.

This fellowship therefore will result in a wealth of interdisciplinary data analysis, the production of internationally peer reviewed journal articles, as well as partial completion of monograph, practitioner handbook, and further research proposal.

Outcome

This research will drive an exciting, nuanced approach to children’s competence; placing it in context through in-depth, interdisciplinary examination. The merging of theory from childhood, disability and feminist studies with more clinical approaches in psychology and neurobiology will, it is envisaged, have the effect of taking understandings of children’s competence in new and innovative directions, focusing on children as equals and as rights-holders.

In the academic sphere, the journal article and book proposal will ultimately lead to the monograph Children, Competence, Context (2023). The fellowship will also permit the space and knowledge-gathering necessary to prepare for interviews directly with children in this area in 2022. Their consultation is crucial for taking a rights-based approach. This will require care and planning due to anticipated challenges with access to participant information and due to the potential vulnerability of child interviewees.

There will be significant scope for engagement with practitioners on real life issues. I envisage in particular bringing knowledge and understanding to bear in areas such as sexual consent and child protection (considering work, collaborations and conversations with practitioners to date). A practitioner’s handbook to provide an accessible overview of knowledge concerning children’s competence is a resource which is sorely needed for those working directly with children. This will be completed in the months following this project, and will constitute a pioneering and practical tool based not just on the latest research, but on critical, detailed and interdisciplinary research which insists on a proper acknowledgement of context as crucial in this area.