CRITICAL ANALYSIS OF CHILDREN’S LEGAL AUTONOMY IN JUDICIALAND MEDICAL DECISION MAKING ACROSS SELECTED JURISDICTIONS

This research paper provides a detailed analysis of key developments in the formal recognition of and actual engagement with children’s legal autonomy within the context of the evolution of judicial, and medical, decision-making across certain jurisdictions. Supported by international human rights instruments, and especially the United Nations Convention on the Rights of the Child, the paper looks at legislation and landmark case law that articulate children’s rights to participation in decision-making, as well as capacity-based consent models. While legislation and the courts have recognized children as right-holders who gain developing capacities, the applicability of such provisions is often inconsistent, and is made even more murky by the use of subjective capacity assessments, social and cultural attitudes, institutional barriers, and the training afforded to professionals in contrasting sectors. Against this background, the paper also aims to clarify the persistent tensions between provision of protective oversight and the respect for developing autonomy, and to indicate how supportive, child-centered, strategies recognize this tension by treading the delicate line between empowerment and safeguarding. Finally, it identifies notable gaps between the legal ideals professed, and the practice in situ, especially in the context of the most marginalized children. It is suggested that more thought be given to standards of clarification in the law, judicial education, and institutional reform, to support children to participate meaningfully in decision making contexts. Ultimately, we offer recommendations aimed at ameliorating these gaps in order to advance children’s rights to participate meaningfully and in a manner that supports self-determination in their lives, in both legal and health care contexts. Keywords: children's legal autonomy, judicial decision-making, medical decision-making, capacity-based consent, participatory rights, evolving capacities, Gillick competence, mature minor doctrine, child rights, child protection law