Wednesday, 10 October 2018

Bringing girls’ gender identities into children’s rights

Dr Patricio Cuevas-Parra is the Senior Global Policy Adviser for Child Participation and Rights with World Vision International where he leads strategies and programmes to ensure that children and young people's participation are at the centre of the advocacy and policy debate.

Whilst attending the UN Day of General Discussion[1] in Geneva, I was part of a panel discussion of adults and young people sharing the platform equally, which in itself signified much more than dialogue at the UN level; it was a milestone reflecting a substantial change on the way that children and young people can be positioned in public decision-making.

Along with three other young people on the panel was 15 year old Haneen, an outstanding young advocate who is defending and promoting children's rights in her hometown of Palestine.

I was thrilled and honoured to meet and share a panel discussion with her.

To me, the conversation with this child advocate was an enlightening experience that reaffirmed my view and professional work, which falls within the debate on childhood as a social construction and children as competent social actors and active participants in the construction of their lives. This position explores the way we understand children, but also how gender, ethnicity, race, class and other categories are intertwined inseparably, defining how children construct and deconstruct their individualities. Haneen is not just a child; she is a girl, a Muslim, and a Palestinian across many other identities.

Despite the Convention on the Rights of the Child’s Article 2, the principle of non-discrimination, whereby all rights must be respected without discrimination of any kind, girls continue to be treated differently based on social, cultural and legal norms that define their roles and responsibilities in society.

Making assumptions that all children can enjoy their rights and opportunities to participate equally regardless of their gender or other categories fails to recognise that girls can be disadvantaged due the social and cultural contexts in which gender identities are constructed. The denial of gender as a category that determines the chances of girls to engage in social life reinforces and endures legacies of inequality, which continue to be present in most of the countries of the world.

As I was conducting interviews with girls from Uganda, they told me that many girls are marginalised by gender and denied of rights from birth and this continues through their whole lives as daughters, sisters, students, workers, wives and mothers. They also pointed out that gender exclusion is exacerbated by other categories such as race, ethnicity and social status, which shape and restrict their lives and opportunities. This is often attributed to the power dynamics in patriarchal societies, where males are dominant in structures of subordination reinforces gender stigma and stereotyping that confine girls to their homes and degrade their roles in society resulting in an unequal realisation of their rights. By assuming that all children construct their identities and rights equally and their gender does not play a role with the equal opportunity to thrive, increases unbalanced power relations and has a considerable impact on discrimination and disadvantage concerning the deprivation of their rights.

While conducting research in Bangladesh, girls told me that they are often expected to behave according to their gender, that they are socially penalised if they do not follow those traditional or expected patterns and they feel they are less favoured than the boys. In Brazil, girls told me that they are conditioned from birth to be pretty and sweet, but other characteristics like being smart and strong are discouraged. In conversations with girls in Uganda, they told me that the value of a girl is the equivalent of a cow if they are lucky; many others are exchanged or traded for marriage for less than that. In America, I interviewed a group of girls that told me they feel undermined and patronised by their male peers and teachers at school and they are expecting to be sexually harassed if wearing tight clothes or makeup.  

I personally have a strong commitment to looking at the identities and lived experiences of girls and boys and how I can contribute to closing the gender gap in realising children's rights. This is probably influenced by my own personal experience and standpoints as I am continually constructing and reconstructing how our identities define our lives as children and adults. When I am in the field, I am captivated by the way the relationships between the boys and girls are framed by their particular gender roles and I often relate sympathetically to the girls’ struggle to be recognised as equals in their communities. Once I asked a group of girls in Jordan about their feelings of vulnerability or exclusion in relation to the difference between boys and girls. They said that they do not feel vulnerable at all and do not want to be labelled as such, but agreed that there was an ongoing fight for recognition of their abilities to participate, but this does not undermine their abilities and sense of confidence. They said they found their way to navigate this and to achieve everything they want.

This dialogue was crucial to me in building new understandings by confronting my beliefs and co-constructing shared meaning of what means to be a girl in any given society. Whilst participating in the panel discussion in Geneva, I asked Haneen the same question, and she responded that she feels empowered, confident and valued and, moreover, she does not see differences between boys and girls. One can disagree with her account, but her stand should help us to balance our perspectives to look at different angles and not just focus on the deprived position of the girls as a vulnerable group. Girls are not just defenceless individuals in need of adult protection; while protection is one of their fundamental rights, they also need to be seen as competent social actors who are able to negotiate power relationships, to interact with others and to define and redefine their own lives.

My call today is to refocus our perspectives beyond a vulnerability lens and to embrace girls’ strengths and empowerment in constructing their lives. This lens can help to promote and improve the opportunities of girls to participate equally in society and contribute to removing the traditional social norms that define their position in society in relation to imposed social identities. It is important to note that, although girls experience different challenges across diverse social contexts, the full realisation of their rights, the desire for inclusion and standing up for equality are almost identical demands from girls regardless of their age, heritage, nationality or origin. Our collective commitment should be to make those demands heard and their hopes a reality.

About the author
Dr Patricio Cuevas-Parra is the Senior Global Policy Adviser for Child Participation and Rights with World Vision International where he leads strategies and programmes to ensure that children and young people's participation are at the centre of the advocacy and policy debate. He has a keen interest in looking at cutting-edge child rights advocacy tools and models to enhance children and young people engagement in public decision-making. Patricio has been based in Social Policy at the School of Social and Political Science at the University of Edinburgh, supported by the Centre for Research on Families and Relationships (CRFR).


De Graeve, K. (2015) Children’s rights from a gender studies perspective: gender, intersectionality and ethic of care, The Routledge international handbook of children's rights studies, pp147-163.
James, A. and Prout, A. (1997) A New Paradigm for the Sociology of Childhood? Provenance, Promise and Problems. In: James, A. and Prout A. (Eds.) Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood, London: Falmer Press, pp7–34.
Konstantoni, K. and Emejulu, A. (2017) When intersectionality met childhood studies: the dilemmas of a travelling concept, Children's Geographies, 15(1), pp6-22.
O'Neill, C. and Hopkins, P. (2015) Hopkins (2015) Introduction: young people, gender and intersectionality, Gender, Place & Culture, 22(3), pp383-389.
Tisdall, E.K.M. (2017) Conceptualising children and young people’s participation: Examining vulnerability, social accountability and co-production, The International Journal of Human Rights, 21(1), pp59-75.

[1] UN Committee on the Rights of the Child held a Day of General Discussion (DGD) in September 2018 at the UN Palais des Nations in Geneva on the theme of “Protecting and Empowering Children as Human Rights Defenders”.  The DGDs are conducted biannually to develop a deeper understanding of the content and implications of the Convention on the Rights of the Child.

Tuesday, 11 September 2018

Transferring ECEC to education: does it make a difference?

Two decades ago England, Scotland and Sweden moved responsibility for all early childhood education and care services (ECEC) and school-aged childcare(SACC) into education. These reforms and their consequences were examined in a cross-national study published in 2004: A New Deal for Children? Re-Forming Education and Care in England, Scotland and Sweden (Cohen, Moss, Petrie and Wallace, Policy Press, 2004). Our newly published article for the Routledge journal Early Years examines  developments since then and considers whether our conclusions  still stand.

In 2004, we found that the systems in the three countries were at very different stages when transferred into education.  Sweden already had  well-developed and well-resourced ECEC and SACC services all under the Ministry of Social Affairs, the former fully integrated with no childcare/education split and the latter usually part of whole day schools opening from around 7am  to 6pm. By contrast, in England and Scotland, ECEC and SACC services had long been neglected, poorly resourced and fragmented with responsibilities divided between health and education ministries/departments, although, as in Sweden, with some local authority experiences in developing more integrated ECEC.

Reasons for the reforms also differed markedly. In Sweden the move reflected the importance attached to seeing ECEC as the initial stage of lifelong learning as well as the nature of its social democratic welfare regime. Transferring these services to education brought a preschool curriculum framework and integrated education for preschool teachers, free-time pedagogues and school teachers. For the UK’s new Labour government, maternal employment and tackling child poverty were the drivers, and integration with education was only partial. But we noted that Scotland’s ‘New Community Schools’ pilot and a new school building programme, and  England’s extended schools, offered both countries the potential for reshaping the boundaries between education and care.  And we speculated that a devolved Scotland might move away from England’s liberal welfare orientation towards a more Nordic or ‘social democratic’ regime.

So what did we find in 2017?  We found continuing integration of ECEC and SACC into the education system in Sweden where access is now a universal entitlement for children over 12 months irrespective of parents’ employment and attendance is either free or very low cost. Concerns over protecting specific expertise and falling numbers of preschool teachers led to the integrated initial education system being dropped but substantial gains have been made in terms of improved child/ parental entitlement to early years provision, its affordability and access as well as enhanced status for the professions involved. Preschool heads now have the same status as school heads and whole-day schools have seen the evolution of multi-professional teams of preschool teachers, free time pedagogues and school teachers working together with mixed age groups of younger children.

In contrast, both England and Scotland have seen stalled integration and missed opportunities. Pre-existing structural and conceptual fault lines between ‘early education’ and ‘childcare’ continue. In Scotland, more radical visions and earlier prospects of New Community Schools delivering new relationships have not materialised. The Scottish Government has referred to not having ‘all the levers’: our study confirms the constraints on devolved administrations in developing substantially different policies when funding remains divided and decided at a national /federal level. In the UK, increased reliance on demand subsidies such as tax credits has reinforced the split between early education and childcare, weakened local authority leadership and made it more difficult to reshape the system.  But we conclude here that the continuing divide in Scotland – where local authorities and their schools continue to be the major providers of early education- also reflects the absence in Scotland of any clear strategy to extend schools’ remit to the provision of ECEC and SACC.  Sweden has shown the gains that can come from transferring responsibility for all ECEC into education whilst seeking to preserve its identity.  England and Scotland have so far, after two decades, failed to realise these potential benefits. For both, it has been a case of more of the same, rather than taking a ‘Nordic’ turn.

Further details on the study findings can be found in:
Bronwen Cohen, Peter Moss, Pat Petrie and Jennifer Wallace (2018) ’A New Deal for Children?’ – what happens next: a cross national study of transferring early education services into education. Early Years, To link to this article:

Bronwen Cohen is an Honorary Professor of Social Policy and affiliated with the Centre for Research on Families and Relationships

Jennifer Wallace is Head of Policy at the Carnegie UK Trust

Wednesday, 20 June 2018

How does providing support for young families affect children’s well-being?

Dr Alison Parkes from the MRC/CSO Social and Public Health Sciences Unit at the University of Glasgow highlights findings from a recent study exploring the impact of support for parents on children’s well-being. 

Many parents with young children need extra help from time to time, in the form of financial aid, childcare or emotional support. Although it is well known that support can relieve parenting stress, it is less clear whether support for parents has a measurable impact on children’s well-being. Our study[i] of 2600 families living in Scotland found a link between the availability of support for mothers during the early years and children’s later mental wellbeing.

In order to be able to discount other possible explanations for the association found, the study controlled for a range of other factors related to both low levels of family support and poor child outcomes. Even after allowing for other factors such as family poverty and lone parenthood, we found lower levels of behavioural and emotional problems among school-age children whose mothers had been able to access support during their child’s early years.

The study examined mothers’ perceptions of the availability of support via two different channels: informal social support networks from friends and relatives, and support from health and social work professionals. There is universal provision of professional support for parents in the UK (for example, from health visitors and via GPs), as well as a range of support services targeted at vulnerable parents. Nonetheless, families often perceive barriers to service access and engagement. These only partly relate to low awareness or practical problems. Importantly, they also reflect parents’ perceptions that available support is inadequate to meet their needs, and fears about interference and stigma.

In exploring the ways in which support for mothers improved children’s wellbeing, the study found that professional support and social networks acted differently. Greater access to help from health and social work professionals was associated with more positive parenting, which in turn reduced the risk of children developing behavioural and emotional problems. Good social support from friends and relatives did not affect parenting so directly. However, the positive effects of social support on mothers’ greater economic security and mental wellbeing led in turn to more positive parenting, which then benefited children.

The study also looked at whether support helped to protect children’s wellbeing when families were under particular strain. Access to professional support channels had the strongest buffering effect. Among families with good access to professional support, the study found a weaker impact of less positive parenting on children’s emotional difficulties, when compared with families who found it difficult to access such help. A smaller buffering effect was found for social support. Here, the impact of family money problems on children’s emotional difficulties was weaker among families with strong social networks, compared with families who lacked this type of support. Collectively, our findings point to the value of professional services and social networks in strengthening children’s resilience to adversity. 

In conclusion, our study findings underline the importance of good social support networks for all families with young children, as well as the need to ensure good access to health and welfare services through building greater parental awareness and trust.

Further details can be found in the following open access publication (forthcoming): Alison Parkes and Helen Sweeting (2018) Indirect, and Buffering Effects of Support for Mothers on Children's Socioemotional Adjustment, Journal of Family Psychology

[i] This study used the Growing Up in Scotland first birth cohort, a nationally representative sample of families with children born between June 2004 and May 2005. For more information, see

Tuesday, 5 June 2018

What does 'home' mean for children whose parents have separated?

Associate Professor Kristin Natalier from Flinders University, Australia, currently visiting CRFR provides a summary of the research she presented at a recent Informal Seminar.
Home is a familiar yet complex idea. Its meaning extends beyond a physical dwelling to include a feeling of comfort, a sense of control over space, connections with family and other important people, and a site in which rituals and routines create feelings of belonging. A sense of home can be important in helping people build their identity, psychological wellbeing and trust in the constancy of people and things. It follows, then, that children will likely suffer when their needs for home are overlooked. Yet so far, very little is known about children’s experiences of home when their parents separate. 
Failing to focus on home is a lost opportunity to address an ongoing challenge in post-separation parenting laws and processes: how to prioritise children’s, not parents’, interests when determining care arrangements. Family law and international law emphasises a child centred approach but post-separation parenting arrangements are still largely determined with reference to parents’ needs, and linked to clock and calendar time. A focus on home shifts the emphasis towards children’s feelings and experiences. It can help us to ‘stand in children’s shoes’, to borrow a phrase from Carol Smart, and see post-separation parenting arrangements from the perspective of children. It draws attention to the matters children consider necessary to create a context that allows them to feel at home, and flourish. 
Our initial analysis of interviews with 22 children suggest that home matters. For example, Zac described what he liked about being at his father’s house: “Just being with my dad and just having fun with him, working on my car and just doing boy things”. His comment highlighted how children can feel at home when:
  • there was an atmosphere of ease and comfort;
  • their relationships with others signalled they belonged in that space;
  • they spent time with parents and other meaningful people in ways that reflected shared interests and experiences; and
  • they could do and have things that mattered to them.
When children felt at home, their experiences might seem unremarkable. However, they are a reminder of the importance of relationships and often mundane family practices in children’s post-separation lives. The times and dates children stay with a parent were not as important as what my colleague Bruce Smyth has called ‘being in the moment time’ – those unstructured and intimate experiences that build connection with others.
Some children described feeling not at home at a parent’s house. An equal shared care arrangement did not allow Benjamin to build two homes; rather, it removed him from his home (his mother’s house). He said of his father’s house, “I feel like I’m on an involuntary holiday, like I’ve been taken away from my home and I don’t want to be there”. Benjamin dreaded going to his father’s house, which he found oppressive and which brought him face to face with large and unwelcome changes in how his father lived his life. His mental health and relationship with his father eroded as a result.
Benjamin’s parents were responsive when he talked to them about his feelings, and changed the care arrangements so that Benjamin no longer had to stay at his father’s house. His family’s emphasis moved from nights spent at each parent’s home to Benjamin connecting with his father in different ways – away from the place where he did not feel at home. Importantly for Benjamin, they developed routines and a meaningful connection that were not rooted in a place, but in an activity: football. Benjamin’s father attended every practice session and game and in doing so, rebuilt a meaningful relationship.
The idea of home can sensitise parents to the importance of attending to children’s lived experience of time– how they feel on a Thursday night, not whose house are they sleeping at on a Thursday night. In emphasising children’s experiences, home might decouple relationships from parental residence, and instead highlight the alternative ways and places in which meaningful relationships can be built – a sense of home, away from home.
Professor Belinda Fehlberg (The University of Melbourne), Associate Professor Bruce Smyth (Australian National University), and I have received funding from the Australian Research Council to explore these ideas further. We have undertaken some initial analysis (here is a summary: and are about to talk to a much larger group of children and their parents about what home means when parents separate. We are aiming to understand children’s experiences of home after separation as a means of promoting new ways of attending to children’s voices when their living arrangements are decided post-parental separation.
Associate Professor Kristin Natalier
College of Humanities, Arts and Social Sciences (Sociology), Flinders University, Australia.

Thursday, 17 May 2018

Who matters, for better and for worse? Personal networks in an international perspective

Jacques-Antoine Gauthier, currently visiting CRFR from the University of Lausanne, summarises the research he presented at a recent CRFR Informal Seminar.

What do we know about the conditions that favour or hamper the ways in which individuals get connected to each other in a significant way? Are personal networks influenced by life course transitions such as marriage and parenthood (or their absence)? Do they change from one country to another?  

A recently published book (Wall, Widmer, Gauthier, Česnuitytė, & Gouveia, 2018) based on a study carried out in Lithuania, Portugal and Switzerland offers some new insights on these issues by asking the question Who are the individuals who, over the past year, have been very important to you, even if you do not get along well with them? First, despite variations over time and place, the research underlines that close relationships continue to form the base of personal networks, challenging the idea of a global decline of the family through the process of individualisation.

This study shows that the closeness between individuals is the result of multiple influences. It is often built over time through co-residence, couple and intergenerational relationships. It also depends on the way cohabitation, birth outside wedlock, childlessness or same sex-marriage are socially perceived and by the place given to friendship and colleagueship. More generally, gender, generation and social class remain influential regarding how close one feels to somebody else. An additional effect may be also attributable to welfare states when considering how their singular historical, social, and normative contexts influence the construction of their citizens’ personal networks.

In Switzerland, long-term stable and wealthy living conditions are associated with liberal policies and ideologies supporting individualised behaviours. At the same time, enduring conservative forces support a rather traditional dynamic of family life and gendered division of labour. Hence, high importance is attributed to friendship and colleagueship within more traditional interdependencies associated with marriage and parenthood.

In Portugal, a long period of low welfare provision associated with a right-wing dictatorship favoured strong intergenerational solidarities and patriarchal models of the family, later thoroughly transformed by the emergence of new family forms and more gender-equal representations. As a result, personal networks are now more adaptable and differentiated. While open to friends, kin and non-kin relationships are combined in a much less exclusive way compared to the other two countries.

In Lithuania, personal networks reflect the hardship and uncertainties associated with the former Soviet occupation and its aftermath. Political instability and economic unrest lead to mass migration and day-to-day struggles, favouring new normative frames focused on pro-traditional family values and policies. Compared with Switzerland and Portugal, personal networks in Lithuania are smaller and less open to non-kin relationships. Despite their smaller size and strong kin orientation, they provide weaker emotional support, which makes them also less cohesive.

The book sheds new light on the complexity of the contexts and conditions potentially influencing the ways in which personal networks are constructed. In particular it shows that their diversity is predominantly shaped by historical and social factors on which private individuals have only a limited influence. 

Jacques-Antoine Gauthier
Universities of Lausanne and Edinburgh


Wall, K., Widmer, E. D., Gauthier, J.-A., Česnuitytė, V., & Gouveia, R. (Éd.). (2018). Families and Personal Networks An International Comparative Perspective. Palgrave McMillan. 
Full text version available at:

Wednesday, 16 May 2018

Time to abandon prevalence studies of childhood sexual abuse?

CRFR Associate Researcher Dr Sarah Nelson reflects on the problematic issues around prevalence studies of childhood sexual abuse.

The wealth of prevalence studies of childhood sexual abuse (CSA) continue to display wildly differing results. Yet the impetus to carry out more studies continues, nationally and internationally. These studies are driven by the demands of commissioners and funders to ‘prove’ need before services are provided or expanded, but also by professional ambition among researchers to be the ones producing a definitive study.

Neither of these is a child-centred approach, especially when basic services – as for instance an NSPCC Scotland report recently demonstrated - remain inadequate for the minority of sexually abused children we do know about. I suggest that conventional prevalence studies are largely fruitless, and that greater accuracy about prevalence will come about as a by-product of ethical, child-centred practice against sexual abuse.

First of all, while factors like safety and confidentiality, follow-up, inclusion of stigmatised subgroups, and description of acts rather than terms like ‘abuse’ or ‘rape’ will produce more accurate survey findings, we will never approach anything like total accuracy about a secretive, often organised crime overlaid with coercion, shame and silencing.

Crucially, recent revelations, such as professional footballers in their 40s reporting abuse for the first time, support research findings that a majority of children do not tell, and sometimes never will. Officially recorded cases always understate: Stoltenborgh’s examination of hundreds of prevalence studies, for instance, found self-report rates 30 times higher than authorities’ reports. Another problem is that CSA and child sexual exploitation (CSE) overlap in their characteristics, and increasingly now in their official definitions. Do we count them together, or separately?

Even more to the point, there has never been any evidence that studies suggesting higher prevalence rates have led to any increase in services, nor to greater action against abuse. Unpalatable as this may be, public scandals exposing shameful practice have been far more likely to do so, just as they have been in other public services. For example, action against child sexual exploitation in Rotherham, Rochdale or Greater Manchester did not belatedly take place because someone conducted a prevalence study of CSE, but through exposure of disgraceful practice towards young victims.

Commissioners and funders are better directed to the results of good practice in investigation as a demonstration of significant prevalence figures. Many ‘searchlight’ or ‘snapshot’ investigations have uncovered that over decades. Back in 1984 for instance a single, active police investigation unit uncovered ten sex rings and 175 victims in one area of Leeds alone. Peter McKelvie’s proactive social work/police investigations between 1988 and 1995 closed several abusive schools and convicted dozens of perpetrators while Professor Alexis Jay’s Rotherham investigation, reported in 2014, found at least 1400 girls had been sexually exploited over 16 years.

However, ethical good practice in enabling abused children and young people to speak out may in future have the single greatest impact in uncovering a greater accuracy of prevalence. Again, it will do so as a by-product of that good practice.

 For example, the Barnahus Children’s Houses, now spreading across Europe from Scandinavia, provide a reassuring child-centred ‘one stop shop’ for enabling children to tell, for interviewing, for preparing court cases and for therapeutic work. They are being actively considered by the Scottish Government for adoption here. The Confidential Space model being piloted in several Scottish local authorities at present aims to slow the investigation process to an abused child’s pace, increase their support, and build knowledge and confidence among staff who work with young people.

There is another alternative way to persuade commissioners and funders to increase CSA/ CSE services and prevention work - to show them that while results of prevalence studies vary greatly and will continue doing so, a substantial, more consistent body of research on negative effects of abuse has demonstrated over decades that survivors are at higher risks than others of mental and physical ill health, addictions, homelessness, very young pregnancy, suicide, self-harm, offending, and distressed acting-out behaviour by young people.

 As a result of this, current costs and ‘revolving door’ usage continue to be high in many hard-pressed services - including mental and physical health, prisons, social work, addiction services and homelessness projects. Future resource savings, through investment in support and prevention projects, can thus be emphasised to funders and commissioners.

...And of course these negative effects, most of all the suffering survivors face, in themselves suggest the importance of a major investment in prevention.

This is a summary of Sarah Nelson’s presentation to the Connect 2018 conference in Cardiff, 3/5/18 (available on request). Prevalence and disclosure issues, and official statistics, are analysed in detail in Nelson, below:
Nelson (2016) Tackling Child Sexual Abuse: Radical approaches to prevention, protection & support Bristol: Policy Press, Chapter 1

Stoltenborgh M, van Ijzendoorn MH, Euser EM, Bakermans-Kranenburg MJ. (2011) ‘A global perspective on child sexual abuse: meta-analysis of prevalence around the world’, Child Maltreat. 16(2):79-101.

NSPCC (2017) The right to recover: Provision of therapeutic services in the West of Scotland for children and young people following sexual abuse



Tuesday, 10 April 2018

In a search for competence? Children’s participation in family law proceedings

CRFR Co-Director Professor Kay Tisdall explores why we find it so challenging to involve children and young people in decisions that affect them.

I have been on a journey for the few past months, in terms of exploring the underlying reasons why we find it so challenging to involve children and young people in decisions that affect them. Involving children and young people is required by the UN Convention on the Rights of the Child and is frequently promoted by policy, institutional leaders and key practitioners. And yet adults find it so challenging when making decisions, particularly in formal decision-making about the child’s wellbeing.

In particular, I have been considering family law proceedings in Scotland. At least in legislation, Scottish provisions are very strong in terms of children’s rights to have their views duly considered in disputed parental responsibilities cases (technically Section 11 cases under the Children (Scotland) Act 1995). But from the evidence we have, children’s views seem to be even less considered now than they were ten years go. Why would that be?

One reason may be the pervasive nature of adult decision-makers’ views of children’s competence and capacity. If such a decision-maker considers children in general, and a child in particular, as incompetent and incapable, does that result in children’s views either not being ‘allowed in’ to the decision-making, let along being given ‘due weight’ by the decision-maker?

I went to look at the relevant literature and case law, supported by what evidence we have in Scotland about children’s views being considered in disputed parental responsibilities cases. I asked three questions: What are meant by competence and capacity? How are they used? Do the concepts enhance or detract from children’s participation rights?

While competence may be very well defined in certain professional arenas, it is not in key children’s rights resources (like the UN Committee on the Rights of the Child’s General Comment on Article 12) nor in family law literature. Competence is often mentioned – but casually, with little precision or definition. Alternative terms are used in Scottish reported case law, such as maturity. Across these sources, judging capacity remains problematic in both law and practice.

As concepts, both capacity and competence seem to be detracting rather than supporting children’s rights to participate. The concepts are being used as if competence and capacity are inherent qualities of the child, rather than something a child expresses in context and in relationships. To be honest, I am not sure if they are helpful at all, given their problematic use and historical baggage. But if these concepts are to be used, I would recommend they are subject to far more critique and precise definition. Perhaps fresh ideas from the UN Convention on the Rights of Persons with Disabilities might help the children’s field? The Convention has been radical about moving away from a best interests test, to emphasising the support needed to ensure people can express their legal capacity.

Then the courts system would spend less effort assessing whether a child’s views should be allowed into the proceedings and more on the information children need to participate. We would have to invest in supporting children to develop and express their views. We would have a radical form of child- inclusive proceedings, where we do not use concerns about a child’s welfare as a reason to ignore the child’s rights to participate. Instead, the focus would be to make proceedings as constructive and supportive of children as possible, perhaps requiring radical changes in what are currently adversarial and formal approaches. An opportunity for us to consider in the forthcoming family law review of the 1995 Act in Scotland?

This blog is based on a longer article recently published in the International Journal of Children’s Rights, Challenging Competency and Capacity? (2018, Vol. 26(1): 159-182). This article follows on from the earlier exploration in Tisdall, E.K.M., “Subjects with Agency: Children’s participation in family law proceedings”, Journal of Social Welfare and Family Law 2016a (38(4)), 362–379 (see blog here) and has learnt from collaboration with Carine Le Borgne

See also our previous blog by Dr Aoife Daly ‘Prioritising Children’s Autonomy is Prioritising their Best Interests’

Kay Tisdall is Professor of Childhood Policy and Co-Director of the Centre for Research on Families and Relationships at the University of Edinburgh. She is Programme Director of the MSc in Childhood Studies.