The ‘best interests’ and the evolving capacities of the child: dilemma’s to address

Omschrijving

From the moment of birth, indeed from conception, a child is in a process of extraordinarily rapid growth and development. As they grow up, children develop cognitive, physical, social, emotional and moral capacities, the acquisition of which influences communication, exercise of judgement, absorbing and evaluating information, self-directed action, autonomous decision-making, extending empathy, awareness of others and foresight. And whilst, clearly, people continue to develop throughout life, all societies acknowledge a period of childhood during which children’s capacities are perceived as evolving rather than evolved. A key difference between the status of adulthood and childhood lies in the presumption as to the attainment of these capacities. An adult – at whatever age that is determined in any given society – is legally presumed to have developed the necessary capacities in all these spheres to take responsibility for their own actions, irrespective of the reality of their competence. During childhood, the reverse presumption applies: as children’s capacities are evolving, they are deemed to lack the competence to take responsibility for themselves. They are therefore provided with social and legal protections in accordance with their perceived immaturity and consequent vulnerability. However, children are not an undifferentiated constituency. The Convention on the Rights of the Child acknowledges the variability in development, stating, for the first time in an international human rights treaty, that “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child [my italics], appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention”.