CHILDHOOD We wanted to understand more about the day-to-day lives - - PDF document

DIALOGUE WITH CHILDREN

CHILDREN, DIVORCE AND CITIZENSHIP BREN NEALE Civil and Criminal Law Private and Public Law

Liberationist View Welfare Principle CHILD STUDIES ADULT PERSPECTIVE INDIVIDUAL PROTECTION / PROVISION FUTURE CHILDHOOD CHILD PERSPECTIVE STATUS PARTICIPATION PRESENT

CHILDHOOD

‘The welfare principle is essentially an adult construction that assumes children to be inadequately socialized dependents in need of care, protection and control’ ‘What of the status of children’s views...?’ Adult perspective Provision and Protection Standard Normative Discourse Status ‘We wanted to understand more about the day-to-day lives

• f these young children...rather than assessing long-term

adjustments or outcomes’ (present rather than future focus and also child rather than adult perspective) ‘Explore young people’s agency within their families’ (status rather than individual focus as well as participation focus rather than protection and care) ‘bring children’s voices centrally into policy debates’ (status rather than individual focus as well as participation focus rather than protection and care) Three Aims of the Research

Object Subject Agent Coagent Response Private Restructure Private Rhetoric Public Private

RHETORIC RESTRUCTURE RESPONSE express wishes and feeling adults decide whether to listen to children adults decide whether to take into account what children tell them Welfare Principle In terms of agenticity the legal system in England scores ambivalent

16.1 (1) A person under fourteen years of age is presumed to have the capacity to testify.

No oath or solemn affirmation

(2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath

• r a solemn affirmation.

Evidence shall be received

(3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.

Burden as to capacity of witness

(4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.

Court inquiry 1

(5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.

Promise to tell truth

(6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.

Understanding of promise

(7) No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.

Effect

(8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.

1 2005, c. 32, s. 27.

Private/Civil Law

• legal discourse and welfare principle
• dependency construction
• limits child participation
• family integrity (familiarization of childhood)
• best interest vs stated wishes and preference
• mothers in the 50s and 60s and parents later on
• collection and use of information
• ignore specificity of childhood and ignore children’s

perspectives

Arguments for child participation

• welfarist version challenge family integrity but also can

be used to argue children harmed by involvement in decision making - both adult centric

• rights based arguments - children and competent and
• ften misrepresented by adults
• both blur participation and choice

Social Citizenship Model Acknowledge specificity Acknowledge child competence Acknowledge stated wishes and preferences Minimizes adult - child power struggle What conditions must exist to allow this to happen?

Interpretative Overview

Bren’s article can be read as a comparison of English legal institution and the family in terms of agenticity with the law coming across as ambivalent and characterized by hierarchical adult-child relations and provision and protection features of the SND while the family is seen as facilitative and characterized an emphasis on participation through negotiation