The capacity and competence of a child and the assessment process is considered in the first section of this book. But some comments are required here in this consideration of children and disputes. There has been a growth and spread of the Children's Rights movement, the employment of Children's Rights officers, and serious attempts to implement the UN Convention on the Rights of the Child and human rights legislation. These vary between countries but the principles are the same.
But there are problems as yet unresolved. Children are in the process of developing, so when can they grasp fully the implications of any decision, and when can they be held responsible for their actions? The variation in the age of criminal responsibilities between countries confirms that there is uncertainty. Do adults opt out of their responsibility to take painful, tough decisions by allowing the child to decide? And yet where a child totally opposes a change frequently the outcome will be problematic— for example, a child in foster care or boarding school runs home.
There are difficulties in setting age limits, a child of 14 or 15 may be very mature and sensible while a young person of 17 or 18 may be very immature and vulnerable and yet is seen as capable of major decision-making. There is a strong desire in legislators and policy-makers to have clear answers. For example, when does a child know right from wrong, fully understand the implications of his or her actions or decisions? It is unsatisfactory to insist on an individual assessment, in each case, but even broad bands can be unhelpful or harmful to children. In the UK 10 years is seen as the age of criminal responsibility. In France, it is 13 years. In other European countries, it varies from 18 years in Belgium, Romania and Lithuania, to 7 years in Switzerland and Ireland; and in Scandinavian countries it is 15 years.
Children's development of memory is an important component in trying to understand capacity and competence, and recent work has shown that in laboratory settings 70% of children down to as young as 3 years can reasonably accurately recall events but can also be coached to change their story (suggestibility) (Leitchman and Ceci, 1995; Fundudis, 1997). Fundudis has written a helpful review of children's memory where its complexity is explored and the question of suggestibility and the implications for traumatised children and interview techniques are discussed. Noting two memory systems of (i) an unintentional non-conscious form of retention (memory without awareness)—implicit memory; and (ii) a conscious recollection of previous experiences (intentional recall)—explicit memory, is important (Shacter, 1992) since it is shown that they develop independently, and so what a child can remember changes. Fundudis suggests that there are significant developmental milestones in explicit memory that are linked to language skills, acquisition, narrative autobiographical recall, the development of self-awareness, and the early beginning of theory of mind. He also suggests that implicit memory is more robust and less linked to age (Fivush and Shukat, 1995).
It is also important to recognise that the child's comprehension as well as memory has to be considered. The case of Gillick reminds us that competence must be borne in mind when a child is deemed of sound mind, reasonable intelligence and capable of informed consent. A court decision, such as Gillick (1986), where the House of Lords (the Senior Appeal Court in the UK) decided that children under 16 years could consent to treatment where they were able to understand the particular decision and its implications even when their parents disagreed, was important. In addition to memory and comprehension, there is moral development and the individual's intelligence and context. This means the family and attachments, the emotional, interpersonal setting in which the child has developed so far that have helped to develop empathy and reflection, and the capacity to anticipate consequences for self and other.
So capacity and competence involve intelligence, memory, moral development, thought, feelings and significant relationships and are based on learning from experience. Capacity in children evolves but is not directly linked to age. However, children's views and wishes must be heard and taken seriously and due consideration given to race, gender and cultural issues. Children with disabilities merit sufficient time to ensure that they can participate in the process of decision-making in situations where there are disputes.
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