Peer-reviewed article
The Complex Notion of the Capacity of a Child: Exploring the Term Capacity to Support the Meaningful Participation of Children in Family Law Proceedings
Emmie Henderson-Dekort, H.J.A. van Bakel, V.M. Smits ·
Summary
Written by AI, not yet AICS's view · claude-haiku-4-5-20251001This academic article explores how to assess children's capacity to participate meaningfully in family law proceedings. It argues that current practice relies too heavily on age as a measure of capacity and proposes that a combined legal and child development approach is needed. The research addresses a gap in understanding how capacity should be determined, particularly for children under twelve years old. The authors advocate for a rights-based approach grounded in UNCRC articles 12 and 5, which emphasize children's participation and evolving capacities.
Key points
- Current assessment of children's capacity in family law proceedings relies heavily on age, which is insufficient
- There is limited literature on how to determine capacity, especially for children under twelve
- An interdisciplinary approach combining legal and child development perspectives is needed
- The UNCRC articles 12 and 5 require meaningful participation of children, necessitating better capacity assessment
- A deeper understanding of what capacity entails is required to ensure children can participate meaningfully
Limitations
This article is a conceptual and literature-based analysis rather than an empirical study. It does not provide practical data on how capacity assessments currently operate in Dutch family courts or evidence about which assessment methods actually improve children's participation outcomes.
Abstract
This article aims to explore the concept of capacity as necessitated by provisions within the UNCRC such as articles 12 and 5, which emphasize participation, and the evolving capacities of children. In family law proceedings when children are involved, age and capacity are considered in order to assess if the meaningful participation of that child is accessible. There is limited literature to indicate how the capacity of a child is determined, especially for children who are younger than twelve. Rather than relying on age to gauge capacity levels, this paper provides a unique, interdisciplinary evaluation of capacity through a combination of both legal and child development perspectives. This article aims to use a critical lens and rights-based approach to analyze the current literature regarding the capacities of children and proposes that a deeper understanding of what capacity entails is required in order to ensure the meaningful participation of children.