Children’s decision-making and the law: exploring a rights-based perspective

Abstract

This paper examines the legal frameworks shaping children’s involvement in decision-making through three distinct models: the property/instrumentalist model, the welfare model, and the rights-based model. It critically analyzes contemporary legal practices regulating children’s decision-making, evaluating them against the principles of a rights-based approach. The analysis focuses on three key areas: statutory minimum age requirements, presumptive age thresholds, and individual decision-making scenarios, particularly where the Gillick competency principle interacts with the court’s parens patriae jurisdiction. The paper argues that a rights-based approach permits minimum age rules and presumptive limits under specific conditions, ensuring they align with children’s evolving capacities. It also finds strong alignment between the rights-based approach and Gillick competency, offering a more nuanced framework for supporting children’s decision-making throughout childhood. Furthermore, the rights-based approach provides fresh perspectives on evolving the parens patriae jurisdiction, traditionally rooted in protection, to better uphold children’s rights and autonomy. By emphasizing children’s status as rights-holders, this approach seeks to balance their protection with their capacity for self-determination, advocating for legal reforms that enhance their participation in decisions affecting their lives.