ISRF Early Career Fellow 2019-20
ISRF Early Career Fellow 2019-20
Aoife Daly is a Lecturer at University College Cork, specialising in human rights, particularly children’s civil and political rights. 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 2020 she published the article ‘Assessing Children’s Capacity’ with the International Journal of Children’s Rights.
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 an Honorary Research Fellow at 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 (with colleagues at the University of Stockholm). She has two children of her own who frequently assert their autonomy rights, particularly at bedtime.
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.