Gathering Perspectives on Expert Approaches to the Capacity and Rights of Children: Working to Inform a Capacity Assessment Tool for Children to Participate in Family Law Proceedings

ABSTRACT

Within the setting of custody and access proceedings, when children participate, the involvement of various professionals is often required. This article aims to gather the opinions, and expertise of 11 legal and child development professionals in regards to the current model of the participation of children in custody and access proceedings. Two separate interview guides were conducted with individuals who identified as either legal or social science professionals in order to establish any differences in opinions or experiences within the family law setting. Further, the qualitative interviews conducted with these professionals aimed to gather expert opinions surrounding the capacities of children and the possibility of measuring the capacity of children to meaningfully participate in custody and access proceedings. Additionally, this research aims to gather expert opinions from both disciplines in order to assess if an interdisciplinary approach to meaningful child participation in custody proceedings is advisable or possible. The research gathered themes in regards to current gaps in practice, opportunity for transdisciplinary approaches, child centered methods of assessment, best interests, capacities and rights of children gathered from the professional perspectives and experiences of each participant.

KEYWORDS:

• Capacity
• interdisciplinary approach
• family law
• custody and access
• participation
• children
• best interests
• children’s rights

Introduction

Within current models of family law proceedings, the participation of children is an extensively discussed topic. The implication divorce or separation has on children can be immense as their living situations, relationships and family life drastically change (Kelly & Lamb, 2005; Moon, 2011). As a common practice in custody and access proceedings, a child’s participation is often considered when they reach the age of twelve (Parkinson & Cashmore, 2008; Pryor & Emery, 2004). Though there is extensive literature that supports it is indeed possible for children under the age of twelve to meaningfully participate in the aforementioned proceedings (Smart, 2002). This qualitative research aims to collect the expertise of professionals involved in both the legal and developmental components involved in determining child’s capacity and ability to participate. Key topics surrounding the participation of children are also covered within this research endeavor, these include: children’s rights, best interests, the role of adults in children’s participation, connections between professionals, child protection, and future steps for practice. This research is a critical step toward the larger goal of developing a capacity assessment tool or standard in order to facilitate children under the age of twelve to meaningfully participate in custody and access proceedings.

As mentioned, the participation of young children in custody and access proceedings is ambiguous and though it is increasingly researched, there is a lack of comprehensive assessments that exist to actualize a child’s right to participate (Birnbaum & Bala, 2017). Upon examining and unpacking language embedded within the United Nations Convention on the Rights of the Child (United Nations, 1989), it can be determined that there is still a large gap in the practical application of articles (Alderson, 2002). Various articles within the UNCRC mention capacity as a determinant of the participation of children. Additionally, some provisions suggest the importance of considering the best interests of children. These terms can be found within such Articles as: 3, 5, 9, and 12. Though capacity is mentioned within the UNCRC, there is little clarity in regards to a definition or how to determine the capacity of a child. This is problematic if certain articles maintain that a child’s participation may be dependent on their capacity (UN Committee on the Rights of the Child (CRC), 2006, para. 51; Lundy, 2007; Welty & Lundy, 2013). Capacity itself, especially specific to children, is an extremely multifaceted, layered, and complex notion to consider, unpack, or assess. Central concepts of capacity often include elements of: understanding, independent thinking, reasoning, the consideration of consequences, values, and expression of thought (Appelbaum, 2007; Dunn et al., 2006). With capacity being comprehended in such varying ways, it is critical to explore what the term means to different groups of professionals.

Though there is research that explores legal expert’s opinions surrounding custody and access, as well as research exploring the psychological effects on children, this current research endeavor will aim to build a bridge in opinions and practices between both groups of professionals (Birnbaum & Bala, 2017; Tabor, 2016). What is missing from the literature is both legal and social science professionals’ perspectives on how they conceptualize current models of custody proceedings, the actualization of children’s rights to participation, and consideration of children’s capacities. As the aim of this research is to explore and support the rights of children, the theoretical underpinnings maintain a children’s rights-based theory. According to Collins, 2016), a Child Rights Based Approach (CRBA) is based upon four general principles within the United Nations Convention on the Rights of the Child (as cited in Wright, 2017). These principles include nondiscrimination, best interests of the child, maximum development and the participation of children, all principles are closely connected. Further, this study involves methods of grounded theory. The thoughts, opinions, and practical experiences of experts were sought out through the interviews, but the aim of the research was to develop something more abstract and conceptual in future research through analyzing the data (Charmaz & Belgrave, 2007).

This research additionally aimed to investigate the differences between the expert opinions of legal and social science professionals. Legal professionals throughout this paper will refer to lawyers, judges, mediators, and any professional who works with children and divorce in a legal setting. Social behavioral or child development professionals within this paper include social workers, psychologists, mental health professionals, therapists, or any professional that works with children and divorce in a mental health or development setting. Though often when children are involved in family law proceedings both legal professionals and social science professionals are required, throughout literature, the separation of practice is apparent. Essentially, this research aims to gather a collection of expert opinions in the Netherlands from both disciplines in order to assess if a interdisciplinary approach to meaningful child participation in custody proceedings is necessary and possible. Further, the research covers themes in regards to current gaps in practice, best interests, capacities and the meaningful participation of children gathered from the professional perspectives and experiences of each participant.

Methods

Study design

A qualitative research design was implemented to gain insight into expert opinions pertaining to the topic of children’s participation, capacities and rights in custody and access proceedings. Expert interviews involved including individuals who have professional experiences and an extensive background in either legal, social work, or child development fields to inform the research findings. Professionals that fit into the category of legal included: lawyers, judges, or mediators, those from the social development category included: child psychologists, therapists, social workers, and social scientists. Detailed interviews are an effective method to employ as the method fits with grounded theory research (Fontana & Prokos, 2007). The researcher included multiple interviews and perspectives in addition to extensively reviewing salient literature and past research to formulate the interview guides. Different interview guides were used for legal professionals and those from a social science background. Table 2 outlines the semi structured interview guide used with legal professionals and Table 3 displays the interview guide for social science professionals.

Table 1. Participant information

Participant Identifier	Position Held	Years of Experience	Common Practices*
A	Judge	22 years	FL, CP, DS
B	Judge	18 years	FL, CA, DS
C	Social Worker/Therapist	23 years	CP, DD, YO, DS
D	Judge	15 + years	JC, CP, IL, CL
E	Judge	10 + years	CP, CA, CL
F	Social Behavior Scientist	10 + years	CA, CP, DD
G	Lawyer, Mediator	20+ years	FL, CA, DS, PP
H	Social Worker/Therapist	14 + years	DS, DD
I	Social Worker	10 + years	DS, CP, DD
J	Family law lawyer, Mediator	20 + years	FL, CA, DS, PP
K	Social Worker	10 + years	DS, PP, CA

*Common Practices: FL = Family Law, CA = Custody and Access, DS = Divorce or Separation, CP = Child Protection, DD = Developmental Disorders, YO = Young Offenders, J = Juvenile Court, IL = Immigration Law, Criminal Law = CL, PP = Parenting Plans

Table 2. Interview guide for legal professionals

1.What does the term “capacity” mean to you?

2. When you think of the term “capacity of children” what comes to mind?

3. In your opinion, what are the key elements that make up a “capable child”?

4. In your opinion do you think the capacity of a child can be assessed?

5. What is missing in the current methods of evaluating children involved in custody proceedings and their participation? What are the limitations?

6. How do you ensure you are considering a child’s “best interests” when completing an evaluation or hearing their voice in a legal setting?

7. From your experiences do you think it is possible for children under the age of 12 to meaningfully participate in custody and access proceedings?

8. Imagine there was a capacity assessment tool for children under the age of 12 to participate in custody/ access proceedings, what elements would have to be included?

9. What do children’s rights mean to you and your practice? How do you implement elements of the UNCRC into your day to day work?

Table 3. Interview guide for social science and child development professionals

1.What does the term “capacity” mean to you?

2.When you think of the term “capacity of children” what comes to mind?

3.In your opinion, what are the key elements that make up a “capable child”?

4.Where does age fit into the notion of capacity? Are the two connected? How so?

5. In your opinion do you think the capacity of a child can be assessed?

6. What, in your opinion, is the potential value of a more qualitative focus rather than a quantitative approach when assessing the capacity of children?

7. From your experiences do you think it is possible for children under the age of 12 to meaningfully participate in custody and access proceedings?

8. Imagine there was a capacity assessment tool for children under the age of 12 to participate in custody/ access proceedings, what elements would have to be included?

9. When conducting assessments or evaluations with children under the age of 12 what are some techniques you have determined necessary from your practical experience?

10. What do children’s rights mean to you and your practice? How do you implement elements of the UNCRC into your day to day work?

Self-of- the-researcher

The researchers of this article were extremely interested in this research endeavor for the purpose of gathering relevant perspectives of professionals in the aforementioned fields. Each researcher provided a relevant background that is grounded within this article. By having various backgrounds in practice, experience, and knowledge, the researchers bring an interesting vantage point to the article. One researcher has an extensive legal background, another has a psychology background, and the third researcher has a combination of both legal and social science concentrations. The interdisciplinary approach to this research is reflected upon the personal interests and various backgrounds of the researchers. Often, literature will gather a set of views from legal professionals or research will aim to collect the opinions of social scientists. However, collectively the researchers considered the importance and value of varying professionals sharing their perspectives regarding the current system of family law proceedings within one research endeavor.

Participants and recruitment

Upon formal ethical approval from the Tilburg University School of Social and Behavioral Sciences Ethics Review Board (EC-2018.97), research participants were recruited. Research participants were selected based upon their position and past experiences. A selective snowball sampling technique was used (Miles & Huberman, 1994). This recruitment strategy was employed in order to obtain the best suited participants based on the following criteria. The inclusion criteria included experience of over five years in either a legal, psychological, or social science setting. Each participant must have been involved in family law, separation, divorce, or work with children whose parents were experiencing divorce as well as possess extensive knowledge and experience in regards to these topics. All participants had to speak English for interview purposes. Participants that fit the criteria were recruited through e-mail correspondence. The study involved eleven participants separated as either legal and/or social professional backgrounds. Table 1 provides an overview of each participant’s title(s), common practices, and number of years of experience in the specific field.

The sample size of eleven experts was deemed sufficient for the purpose of this study. In most qualitative research, generalizability or many responses should not be the aim, but rather participants are selected specifically due to their expertise, understanding, and insight into the research topic (Bolderston, 2012). For the purpose of this research, participants were recruited and interviewed until data saturation was achieved (Saunders et al., 2018). The number of participants allowed for detailed research and a deeper connection to theoretical background.

Data collection

Semi-structured, one on one interviews with eleven professionals were conducted in their workplaces or over Skype between March and December, of 2019 and lasted approximately 40–60 minutes. These professionals’ titles included: judges, lawyers, social workers, child protection workers, therapists, and psychologists. Their titles were included within the research in order to inform the position held by each participant as well as their expertise. Tables 2 and 3 provide the interview guide for both groups of professionals either legal professionals or those from a social science or child development background. The areas in which the professional’s practice and their years of work experience can be found in Table 1. Interviews were recorded and uploaded onto a password protected computer for transcription and analysis. The data was subsequently uploaded, analyzed, and coded by the researchers and through the use of NVivo software.

Data analysis

An inductive process was applied while analyzing the collected data. An inductive approach begins by collecting relevant data and then examining the data. Patterns are examined in order to develop a theory that explains the aforementioned patterns. Essentially an inductive approach aims to move from data collection to theory formation (Hodkinson, 2008). Extensive literature surrounding the topics of family law, divorce proceedings, and the capacity of children influenced the initial interview question guide for each group of professional participants.

To establish rigor and trustworthiness within this qualitative research endeavor, credibility, transferability, confirmability, and dependability were all considered and addressed. To ensure credibility, theoretical triangulation was implemented. This involved using various theoretical perspectives and viewpoints to analyze the data (Harvey, 2015). Thick description was embedded within the findings of this research in order to display transferability, specifically by providing a background of the researcher’s experiences during data collection, through collecting extensive field notes and explicitly noting connections to the context of data (Anney, 2014; Shenton, 2004). To determine dependability, one researcher conducted the interviews and two different researchers reviewed, analyzed and confirmed the emergent themes the first researcher presented to perform a type of “inquiry audit” (Shenton, 2004). Finally, to ensure confirmability, numerous verbatim quotes were included to display the authentic narratives of the participants (Anney, 2014).

All interviews were individually transcribed line-by-line by the researchers as a means of pre-coding and through this method, initial codes were pre-defined. The transcribed interviews were uploaded onto Nvivo and analyzed further for more patterns and themes. Open coding was completed line by line which led to the identification of initial broad codes (Gilgun, 2001). Following, axial coding allowed the researcher to decide on core concepts and determine the relationship between codes. A set of initial themes were determined by pre-coding and open-coding and then broken down further into more specific subthemes which can be viewed below in Table 4.

Table 4. Table of themes

Superordinate Themes	Subordinate Themes
Current Gaps in the Practice of Children’s Participation	Connection Between Professionals Hearing the Voice of the Child Time and Resources
Assessing the “Capable” Child	Intellectual Capacities: Understanding and Comprehension Emotional Capacities Nature Versus Nurture
Children’s Rights	UN convention on the rights of the child Best Interests of the Child Child protection
Possibilities for the Development of a Child-Friendly Capacity Assessment Tool	Examples of Capable Children Methods of Child Centered Assessment Who Should Assess?

Findings

In analyzing the interview data, key themes emerged which will be discussed in this section. The main themes that will be discussed within the findings section of this paper include: the presence of the child, the rights of children, the role of parents and other adult professionals, and capacity. After reanalyzing the data within the key themes, numerous sub-themes were identified and explored, these themes, and sub-themes can be viewed in Table 4. The findings are presented below under four main thematic categories: (3.1) Current Gaps in the Practice of Children’s Participation; (3.2) Assessing the “Capable” Child; (3.3) Children’s Rights; and (3.4) Possibilities for the Development of a Child-Friendly Capacity Assessment Tool or Standard.

Current gaps in the practice of children’s participation

Connection between professionals

The connection between professionals refers to the importance of creating a bridge within the practice of both legal and child development professionals. In current models of children’s participation, one of the most frequent themes gathered from both groups of professionals involved the connection of practice, or lack of connection of practice. Most participants identified issues with separated roles and involvement when helping children meaningfully participate in custody or access cases. Overall, professionals from both the legal and social science disciplines felt there should be an emphasis placed on connecting practices to better support the participation of children. In actuality, these practices are siloed, in terms of the difference and the disconnect between multidisciplinary approaches. The following excerpt evidences this when one participant eludes to issues with the current model of practice:

The current model usually involves someone specific who speaks with the children, this can include different professionals maybe a lawyer and then a social worker, and someone who separately speaks with the parents, they are all workers on the same case, so they must discuss with each other to determine what is the best situation for the child, this is a link that needs to be further developed.- Participant I (Social Worker)

The requirement of a bridge between child specialists and legal professionals is made apparent through this quote, however there are even limitations between similar professionals. Even if within a common practice, variances can persist, making a connected team for the child difficult to assemble. For example, a child can see different social workers and have to tell their story, opinions, and thoughts multiple times. Similarly, within a courtroom, a child can speak to multiple judges across varying timelines and ultimately, it is a different judge who will be hearing the case developments each time. One judge confirmed this was a common practice which the participant had seen across years of practice.

… they held the discussions with the child on other days with other judges and what I did get in the file as a judge was a small summary about what they have spoken to the child about. I should say that the judge who speaks with the child also must be the one who is making a verdict about the case, but that is not often the case.- Participant G (Lawyer, Mediator)

This displays the disconnect within practice as one judge may speak to the child and another may make a decision regarding the proceedings. Many participants believed the setting of family law is extremely emotional work and that it is often difficult to determine which professionals need to be involved and the most appropriate time for them to be involved. Support is needed from a legal perspective, but the emotional support of children and families involved is also imperative. One participant from a legal background found it was difficult to have something like custody discussed and settled in a courtroom because it is an extremely emotionally charged event.

… the cases can take years because sometimes the practices don’t connect. By that I mean usually in these cases you are trying to solve emotional problems in a legal way.- Participant E (Judge)

This quote again displays the divide within family law proceedings. Overall, many of the participants agreed that in custody and access proceedings they often reach out to professionals with expertise that is different than their own. This could be a judge seeking the opinion of a child psychologist or a social worker working closely with a child’s lawyer in a high conflict custody case. However, all participants admitted that there is no standard practice or team of professionals that exists to help children participate.

… you can see that we don’t have many tools at all, we must do most things with our common sense- Participant G (Lawyer, Mediator)

This indicates that even legal professionals such as lawyers or judges, feel they do not have the required knowledge to support the children or families within these proceedings. If all these professionals can use is their best efforts or “common sense” the meaningful participation of children is evidently compromised, which presents a huge limitation in practice.

Hearing the voice of the child

Hearing the voice of the child is integral for their meaningful participation and to gather their authentic perspectives. Though an abundance of current literature in the area of family law aims to increase the voice of the child to be present in legal settings, there was variation in responses between both groups of professionals. Most participants mentioned that the absence of children in legal settings has a large influence on assuming their best interests. In the current model of hearing the voice of the child, usually if the child is twelve or older, or in cases of child protection issues, children are asked to voice their opinions. For those children who are younger, their voices are rarely heard and their participation is limited within court proceedings, their opinions can be overlooked. A judge evidenced this finding by noting:

It’s so easy to forget the child, especially when you haven’t seen or met them, because if you have been talking to the child it is a person, it has become a person and not just like the cat or the dog of the people. With children under 12 that you never meet in person, it is really hard to think it is about the child. And you really have to help yourself remember that this involves a child if they are not there … so it is difficult.- Participant A (Judge)

For a judge to note it is easy to forget about a child or that they must constantly remind themselves a child is involved creates obvious limitations for their voices to be heard. The nature of a child’s voice in a court setting has been recognized as ambiguous in terms of actualization, especially for children younger than twelve. Though many judges support the notion of hearing a child’s voice and some encourage their participation, occasionally that voice is not prioritized and silenced by the bigger conflictual issues involved in the proceeding. A social worker maintained this limitation by noting:

“ … we tend to think for the children instead of having the child think or speak for him or herself, we tend to forget to ask them as human beings who are capable of saying very reasonable things. It is difficult because the voice of the parents is always so much louder and their conflict is so much louder than the voice of the child … - Participant H (Social Worker, Therapist)

This quote adamantly displays that children’s voices are not lesser to adults, but rather different and must be collected despite the volume of the conflict that is often found within custody proceedings. Many participants agreed upon the importance of hearing children discuss their opinions, thoughts and best interests, however none of the participants felt confident enough to share a method or tool which best allows them to speak with these children. Participants mentioned different ideas, techniques and suggestions. Many mentioned one-on-one interviews, or exercises such as providing templates of blank houses in which a child is given the opportunity to describe the environments of each of their parent’s homes. However, none of the participants felt their methods were entirely effective and most noted not having a standard tool or guide to speaking to children about these topics provides difficulty within their practices and supporting participation. One participant in particular noted the lack of effective standards:

We are still struggling with how to speak to children in divorced families, when you speak to them, who does speak to them and what to do with the information and which tool to use. There is too much variance … we haven’t found a tool yet.- Participant F (Social Behaviour Scientist)

This evidences the need for better information or support in terms of speaking with children. The inconsistency that exists with the various assessments and tools actually creates a larger limitation for those professionals who wish to utilize such assessments. It is difficult to gather a complete picture of the whole child with current tools and assessments in place. Overall, participants agreed that hearing the voice of the child in custody proceedings is ambiguous and relies on various factors. In this sense, the professionals felt you can gather an idea of the child’s thoughts and opinions, but it is difficult to determine who that child is and why they feel the way they do, which is important in the eventual decision-making portion of a family law proceeding. According to the participants, it is critical to maintain multiple considerations such as: Who is interviewing the child? Where is the child being interviewed? What questions is the child being asked? In what way is the child being interviewed? What is done with the information? These are all questions, in which the participants agree, that should follow a relatively universal and comprehensive framework.

Time and resources

A limitation in current models of custody and access proceedings is the time and resources available to support children’s participation. Both groups of professionals in the legal and social science backgrounds concur it is important to gain insight into the complex factors of a child’s life and capacity. However, the balance of demands such as time and resources can drastically affect the meaningful participation of a child in a legal proceeding. These pressures were mentioned by professionals from each discipline. Social workers and child professionals mentioned the pressure of completing timely, yet comprehensive interviews with children. Professionals from the legal discipline noted the importance of balancing typical standard expectations of proceedings but also feeling the child’s voice was adequately included. Time was a frequent topic that emerged as the timeline of a proceeding effects the amount of information and resources that can be available for a child. One lawyer noted the difficulty between effective meaningful practice and meeting timelines.

… something like gathering information in regards to their social settings, so what are their developments in school is important but the difficulty will be that you also want, as a judge or a lawyer, the information will there be in a quick time. So of course, when you do a very intense report, you need more time to do that. You need to look for a balance between getting knowledge about the capacity of a child, in the time that the proceedings take.- Participant G (Lawyer, Mediator)

This eludes to the difficult nature of balancing gathering insight and the genuine voice or capacities of the child, as well as meeting deadlines within a family law proceeding. Most professionals recognized that capacity is important and can be measured, but that time can be a restricting factor in exploring a child’s capacity in a meaningful way. Involving the child in a meaningful and deep way is time consuming. The timelines of these proceedings effect the effort that can be spent hearing a child’s voice and supporting their participation. Another participant noted that time was the largest limitation in family law proceedings:

The biggest limitation is speed! Everything takes so long normal divorce proceedings take about a year and a half to two years, before there is even somebody listening to a child, it takes way too long to look at the child consistently. And yet, it is all very limited in time. When a judge assigns a social worker, it is just one talk with the child or when a judge himself or herself will talk to a child it is only half an hour, very long into the proceedings. It is only just a limited amount of time, it is not enough to really assess a child, and in some cases, there are four or five different people a child has to speak with, the time and resources don’t match- Participant J (Lawyer, Mediator)

This displays the imbalance of timing and resources that are involved when including children in family law proceedings. It is difficult to balance, as gathering a clear, intricate report about a child’s capacity and voice is time consuming if done in a child-friendly, rights-based approach. In order to gain insight into all aspects of a child’s life, real time must be spent with that child, and resources must be utilized properly.

Assessing the “capable” child

Intellectual capacities: understanding and comprehension

One critical theme that emerged when discussing the capacities of children is understanding and comprehension as a key consideration. Majority of the participants responded when asked about their thoughts regarding a child’s capacity initially focused on children’s intellectual abilities and cognitive functions. One social worker noted the importance of cognition and capacity:

… capacity is complicated, one part of it is the child’s cognitive understanding and further than that, the child’s theory of mind … is this child aware that he is in a bigger world? As a child develops cognitively, that child becomes aware that there is a complicated world around them that they are a part of, that is important I think … and I do think that mental elements like theory of mind can be measured and assessed.- Participant H (Social Worker, Therapist)

This evidences the immensity of children’s abilities and that in order to effectively explore a child’s capacity one must understand the child on a deeper level then intellect alone. Age is often associated with assumed developmental trajectory or intelligence level. All participants agreed that age was not the only factor that can be considered in relation to a child’s capacity. Children can vary greatly on developmental levels regardless of their chronological age. Therefore, it cannot be the sole indicator of a child’s capacity. However, many participants mentioned age is an effective starting point for consideration of a child’s capacity. With chronological age comes societal, developmental expectations that are frequently embedded. Most participants agreed, capacity and age are simply not dependent upon each other as one judge notes:

First of all, it is important the child understands the situation that you are about to investigate. Whether the child’s capacity is enough in order to say something about that … a child of 5 years of age might be very well capable of understanding what the situation is, but you really need to find out whether a child comprehends what it is about.- Participant D (Judge)

This excerpt displays that age is not the only factor, but that professionals need to work closely with children to figure out what they are capable of. All participants agreed, cognitive understanding and developmental elements, such as age, are important to establish when considering the capacity of children, though, participants also noted that these factors must not be the only elements considered.

Emotional capacities

Emotional capacities refer to elements other than cognition that comprise a child’s capacity. Participants noted there was an inherent difference between the intellectual capacities and the emotional capacities of children. Further, they agreed that cognitive functioning is an important element but a more difficult factor to assess is the emotional capacity of a child. One judge noted the morals children develop as one example of emotional capacity:

… there is a period around 9 or ten years old I would say, that they [children] develop a more moral stand on the world, suddenly they become vegetarian or they become very supportive of the Sea Sheppard for example, and they begin to form their beliefs based on these morals … this speaks to their emotional capacity level- Participant B (Judge)

This excerpt provides an example of emotional capacity as children begin to form their own values and establish what they believe as right or wrong. Emotional capacity speaks to the unique nature of children as individuals and is a factor that is more difficult to measure. In contrast to intellectual capacities, which can be given numeric values and appear clearer to assess, emotional capacities consist of more individualistic characteristics that cannot be quantitatively assessed (Walton & Hibbard, 2019). As you can employ intelligence or developmental trajectory assessments for intellectual capacities, emotional capacities are far more difficult to measure. Another participant notes the difference between what children think and how they think:

For me it is somewhat simple to establish what a child, thinks and what they want. However, I want to know more about how they are thinking rather than just what they are thinking. There are many levels to a child’s capacity in this sense, it is not just about intelligence there are deeper, more emotional capacities within.- Participant E (Judge)

This displays the deeper thinking and consideration that is required to gain insight into children’s capacities holistically. The emotional capacities of children were mentioned by several participants. Many of the participants struggled with defining such capacities or offering methods of assessment. The emotional development of children is individualized and difficult to measure, however gaining insight into this element is critical to capture a full view of a child’s capacity.

Nature versus nurture

The topic of “nature versus nurture” arose within the interviews as many professionals mentioned the importance of simultaneously considering a multitude of factors in regards to a child’s capacity. The phrase refers to the development of children which can be considered through either biological factors (nature) or social factors (nurture) (Keating, 2010). Many participants agreed a child’s capacity cannot be considered solely by age, intelligence, or quantitative measurements, rather it must also be considered with the emotional elements that comprise a child’s cognitions. In relation to capacity, the participants noted that there are some elements of capacity that will be innately present biologically through the “nature” of children (i.e. age will ensure a certain level of understanding). Additionally, elements of capacity may have been taught or fostered through “nurture” (i.e. teaching a child about a certain topic will provide that child information or capacity to understand that topic). One participant referred to the both elements and their relevance to the capacities of children.

… of course, nature and nurture must be considered collectively. Let’s say that nature is the age, and nurture is how the upraising of that child was, we must consider both. It is simple to connect the two of them, but sadly we work with too many cases to consider each child’s nature and nurture in a family law setting. We must make a lot of decisions, explain them, and do it again, so of course it is easier to work with numbers, you know qualitative results. It is easier for the system to set a clear limit of 12 for example, and say until 12 no and after twelve, okay. Of course, everybody knows 12 isn’t a hard limit of capacity, but in practice, we must work with a hard limit.- Participant B (Judge)

This participant felt that oftentimes the complicated balance between nature and nurture is often excluded and a dependence on age is simply easier to rely on. This judge provided the example of a child’s history and that factors of nature and nurture present themselves throughout a child’s upbringing. Therefore, gathering a past history of that child’s life from infancy to their current self, is critical for deeply understanding that child and their capacity level (Keating, 2010). One participant emphasized the importance of a exploring a child’s development in order to efficiently understand a child’s capacity:

I want to know about the early years of a child’s development. Like resiliency, has this child experienced trauma or hardships? How have they dealt with it? Did they have therapy for it? I want to know the impact of trauma if they had any from the divorce, if it was treated or if it is still there. The internalizing and externalizing behaviours. The history of a child’s life, especially in their early years, is critical to gather a full picture of capacity.- Participant F (Social Behaviour Scientist)

By inquiring in regards to a child’s history, a professional can gain valuable insight into their development and capacity. When discussing nature, nurture, and children’s history another element that many social science professionals mentioned was the importance of attachment. Attachment styles are important for informing a child’s capacity level as their involvement with parental figures will impact their development (Belsky, 2002). One participant noted the importance of attachment and referenced the multitude of literature that pertains to such:

… attachment speaks to how a child is raised, you need to assess the quality of a child’s attachment figures. Usually if you hear a securely attached parent, you can see secure attachment in infants. A lot of studies would agree, I think the first three years are very important, in the first three years that child can form an attachment and has the first layer of becoming. The first thousand days in a child’s life are the most important, where the foundation is built and some elements they come by nature like temperament or IQ, but you also need the environment too, your parents and your family.- Participant F (Social Behaviour Scientist)

As made evident by the above quote, attachment is especially relevant as it relates directly to the development of children. It can be concluded through these findings that one factor is not enough when considering the capacities of children, there are layers and various elements that must be deeply considered.

Children’s rights

The UN convention on the rights of the child

A question that was posed throughout the interviews involved the professional’s experiences and knowledge surrounding the United Nations Convention on the Rights of the Child (United Nations, 1989). All participants from legal settings that were involved in this research, were familiar with the UNCRC and enthusiastically described how it guides their practices. All legal professionals had their own copy and referred to it consistently during family law or other proceedings that involve the interests of children. Many of them also referenced the General Comments from the Committee on the Rights of the Child. Some stated that the convention itself is vague and inherently implied within the legal systems they work within, and the comments provided a more practical application of these rights. Some of the articles and provisions, according to legal professionals, only scratch the surface, whereas the general comments provide more practical insight to the application of provisions. One judge noted a limitation in terms of the UNCRC and its practical applicability.

Well the UNCRC itself is actually quite vague, of course we do understand what it says, but it’s inherently vague. If you look into the general comments, then of course we get more direction than in the declaration itself. So indeed, I consider the general comments … in the end you would say ‘according to article 12 of the UNCRC, this and this should be the answer to the question in front of us’, but we came to this answer from looking into the general comments and we see what else we need to take into account, it requires deeper understanding.- Participant D (Judge)

This quote adequately explains that the convention itself does not provide practical strategies but rather presents itself as a relatively vague guide. The participant noted that they prefer to look into general comments for more clarity and though they are familiar with the UNCRC, it is difficult to apply in practice without a deep comprehension. Opposingly, some of the social workers and child development experts were unaware of the exact structure and articles within the UNCRC. The difference in reliance on such a critical document as the convention on the rights of the child was apparent between both groups of professionals. Within the interview process a copy of the UNCRC was provided and those participants who were not familiar had an opportunity to skim through a printed version of the convention. Once those who were not familiar had a chance to gaze through the UNCRC, they noted that though they have not memorized or referred to the convention itself but, many of the articles are embedded within their daily practice with children and families. One social science professional explained they were unfamiliar with the convention:

… people have never really said to me, ‘you forgot to respect that child’s rights’ … maybe I should be a little bit ashamed by not knowing these articles or rules, but I really think they are inherent if your practice involves working with children.- Participant C (Social Worker, Therapist)

As it pertains to the rights of children there are levels within the convention. In countries where most of the basic rights of children are consistently met and are expected such as Canada or The Netherlands, concerns about food, shelter, education or healthcare are usually met. This gives professionals in these countries the opportunity to enrich the rights of children in a deeper way and move beyond their basic needs.

In my own practice and my own country, we are lucky enough to be able to have higher expectations than the main elements of the UNCRC such as food, water, shelter, education, medicine … we can protect the rights of children in much deeper, more meaningful ways, we have that luxury.- Participant K (Social Worker)

By having met the basic expectations of the care of children, professionals should recognize that being able to uphold or practice children’s rights in a deeper way is a possibility. An interdisciplinary bridge of practice would also address the limitation of actualizing the rights in a deeper more meaningful manner as collectively, legal and child development professionals carry practical and theoretical knowledge surrounding the UNCRC and provisions within.

Best interests of the child

The best interests of children are often referred to in family law proceedings and are embedded within article 3 of the UNCRC. The term was brought up in every interview with each participant. The notion of a child’s best interest seemed to guide the participants who needed to complete evaluations or make decisions about the child’s life. The participants found it difficult to determine what the best interests of a child truly consist of. According to the experiences of participants, within family law proceedings there are often many individuals involved including: lawyers, judges, mediators, social workers, psychologists, parents, and other family members. Thus, it is difficult to determine who knows the child’s interests best. One participant noted a way to mitigate such complexity is to consult the children themselves.

In order to assess the best interests of a child, you should know the interests of the child and of course there are lots of people in the child’s life saying this is in the best interest or this is or this is, but when it comes down to it, the child themselves are the most suitable person to express their interests. I think it comes down to being informed as much as possible from either side, but also being informed by the child.-Participant D (Judge)

This evidences the importance of speaking with children directly regarding their best interests, adults may assert their superior knowledge, but it stands true that the child should be considered as the expert of their own interests. The term is consistently used in family law proceedings, but is ambiguous to actualize and carries various meanings to different professionals across different practices. Another participant provided an explanation in regards to the ambiguity which exists in the field of family law, as it pertains to best interests.

… the entire field of custody and access is, it isn’t really … there is a law, but the law is as wide as the North Sea, you can decide anything you want within those boundaries. As long as you apply the right rules, the main rule being the best interests of the child. And you can always say, ‘I think this is in the best interests of the child’, but it could be exactly the other way around, you know? -Participant E (Judge)

It is evident there is opportunity for the voices of children to be more meaningfully considered as this judge maintains the most important criteria should remain the best interests of the child. In some cases, however, it is difficult to determine what those interests are. As supported by the interviews, it would be in the best interest of every child to live a stable life with supportive family systems, this is not always the case, especially in the situation of a divorce proceeding in which the foundation for a child is already shaken. One participant notes the basic best interests of children can remain unsatisfied in divorce proceedings.

… best interests, that term, it is like rubber, you can think of it many ways and it can go anywhere and people are always very divided about best interests. However, in many cases it is not about best interests but more about the best possible outcome, it’s not good, but what’s not the worst? Best possible interest for a child is having a father without psychiatric problems, and a mother without a severe drinking problem on disability, but we must work with what we have.- Participant A (Judge)

Though the best interests of every child should be prioritized in family law proceedings, oftentimes professionals must work with the information and abilities they have. Sometimes the best interests are simply unobtainable and instead professionals must consider the best outcome possible for a child. However, the importance of gathering the best interests from the child themselves is apparent, as they can provide the best insight into such information. Overall, the best interests of children are embedded in their rights, and must therefore be deeply considered.

Child protection

Child protection is embedded within the UNCRC as each child should understand they have the right to safety throughout any custody proceeding, despite its conflictual level. It is interesting to note, no direct questions relating to the protection of children were included in either interview guide. Though, many participants brought up elements regarding the protection of children, both emotionally and physically when potentially participating in custody proceedings. These situations can be highly conflictual and emotionally charged, therefore though all professionals supported the rights of children to participate, they indicated the child’s wellbeing through participation must be sustained. Most participants from a legal background noted that prior to participating, a child should first be asked if they would like to participate, though it is a child’s right to adequality participate, it is also their right to deny participation.

Primarily, you must consider to what extent the child wants to say something about their experience. Some children simply will not want to, and I think we need to accept that. It doesn’t mean they don’t understand, they do, and they understand how complicated it is, so they may opt to stay out of the discussion, and that is their right to do so.- Participant I (Social Worker)

Though children have the right to participate this participant noted that they also need to be informed what participation will look like and be given the choice to also not participate if they prefer. If a child does decide to participate, the importance of protection was also mentioned. This protection may involve physical considerations, in which case child protective measures with external organizations would be pursued, but most of the protection revolves around emotional factors. Elements such as stress, loyalties, guilt, alienation or anxiety are inevitable issues children face when involved in a conflictual custody process (Tabor, 2016). One participant emphasized the priority of protection before even attempting to evaluate or speak with a child.

If you want a child to participate in important processes, you have to consider stress is a complicating factor, and a child who doesn’t feel protected, has stress, I think. And also, you don’t want to put children under more pressure in a situation that is already difficult for them. If you want the child to be in the best condition to participate you have to keep them free from stress … the capable child is a protected child. - Participant C (Social Worker, Therapist)

Stress is one example of an emotional response that a child may experience if participating, this social worker emphasizes that a child who feels protected from emotional stress will inherently be more capable. Both the physical and emotional protection of children is critical in highly conflictual divorce or separation cases. Rather than waiting until the conflict is at its highest to intervene, another model of protection can be emphasized through preventative measures. If appropriate, preventative measures should be placed early into the conflict, that way the child can have access to support or resources to help them deal with the conflict effectively. Some participants mentioned children having access to individual lawyers or guardian ad litem, a court appointed individual who investigates which solutions are in the best interest of the child. When discussing the protection of children from the potential conflict of custody and access cases, one individual with a legal background noted the importance of prevention and related divorce to a disease-like model stating:

… when you have a certain disease you have protocols, so the doctor would see you and say okay you have this disorder and know we can prescribe you something, we should see what can be ‘prescribed’ if you will, using mediation, or guardian ad litem, so one person in the beginning should be asked, what do you need for help? Is that mediation or do you need a temporary court order? Or do your children need help? Divorce can be a huge event in someone’s life and we don’t have a protocol for that … it is very important that one person in the beginning makes a proper diagnosis of the conflict and also what the children will need in that. Because what we are now doing is that, it is so escalated and then we start to think about the concerns of the children, but it shouldn’t be like that … -Participant G (Lawyer, Mediator)

This excerpt evidences the prevention of protection is advisable be starting with support for children, rather than implementing protection practices when the child is in crisis. Despite the prevalence of divorce and separation, there is no clear protocol regarding early intervention or support for children, this is evidently a limitation in current divorce proceedings.

Possibilities for the development of a child-friendly capacity assessment tool or standard

Examples of capable children

When discussing the need for new tools or standards, the topic of what a capable child comprises of was relevant, examples of capable children were included within the interviews. When posing the question to each participant about whether they thought it was possible for children under the age of twelve to meaningfully participate in custody and access proceedings, every professional interviewed had positive responses. Each professional, despite their professional background responded that it was indeed possible for a child under the age of twelve to meaningfully participate in divorce proceedings. Every participant agreed that the capacity of a child could potentially be assessed, although many felt it would be a complicated task. Further, many participants had examples of capable children under the age of twelve trying to get their views across they had worked with in their practice, as one lawyer stated:

I was Guardian Ad Litem of a boy of 6 years old and he was perfectly capable, he said to me, I said, ‘what is your biggest wish?’ He said to me, ‘well my biggest wish is that my parents come to my football game together’, but, I know that is impossible because they will start fighting. That is a child of 6 years old so, that child is perfectly capable to express his feelings and unfortunately children that are in a difficult situation are often wiser than they should be.- Participant G (Lawyer, Mediator)

This example displays the capability of a child of 6 years of age who is able to explain their parent’s conflict and note that even though they wish for an outcome, they understand given the current conflict, it may not be possible. Another participant provided an example of how a child used play to adequately express their thoughts and perspectives regarding their parents’ conflict:

… I worked with a 6-year-old boy who was asked to play with toys to explain his parent’s divorce, and he took a crocodile with a big mouth and sharp teeth, and then put a shark on top, because he expressed the crocodile alone was not enough. So, the crocodile and on top of it the shark, that was, to him, the divorce. He had a very clear mind about the divorce and when he was asked, ‘where are you in this situation?’ he built up a high tower and he said he was standing on top of the tower alone, so that’s one example, 6 years old and he can tell you perfectly what the divorce is like for him.- Participant B (Judge)

This excerpt evidences another example of how children can use unique methods to explain their perspectives and display their capacity. Despite a child’s age and participatory actions however, sometimes children require more time and commitment to having their voices heard and deeply considering their capacities. This lawyer provides an example of a child that was involved in an extensive family law proceeding:

I recently finished a case that took about five years. The child had spoken with their doctor, a social worker, a therapist, a protection worker all different people. She told her story to like five or six people, and everyone was questioning her authenticity because she was only 9 years old … finally after a few months of legal proceedings, the judge decided to speak with the child himself. By that time, she was 10 and the judge gave a very high rating to her opinion. It was a huge part of his decision. So, it is possible, every child is different so you have to deeply assess every child and ensure they are capable of explaining their own opinion, an authentic opinion.- Participant J (Lawyer, Mediator)

Despite the amount of time this child was able to have their opinion considered and display capacity at a young age. Many of the examples provided by participants supported the capacities of young children voicing their opinions, thoughts, wishes, and concerns. It is critical to explore specific examples of children meaningfully participating and using their voices in order to emphasize their capacities. Though each child is unique despite their biological age, participants noted that many of these young children possess the desire, the ability and the possibility to use their voice throughout these proceedings.

Methods of child centered assessment

Through the experiences and practices of the professionals included in this research, many could provide examples of methods of child centered assessment. The participants showed interest in a tool or standard that would aim to assess the multifaceted elements that provide insight into a child’s capacity level to meaningful participate in family law proceedings. When asked what methods should be included in order to assess the relevant factors, many techniques were discussed. First, the participants were asked what elements are most critical to know, one noted the importance of how you speak to a child.

What I would need as a judge from such a capacity assessment tool, is the absolute basic confirmation that, yes, this child is at a social emotional capacity to oversee this, to give their opinion on a more “meta” level. But further, it would be really nice to know more about the child like their strong and weak points if you are talking with them. For example, if you talk to them this way then you can really get insight into their opinion, if you talk to them in another way they might feel pressured. – Participant E (Judge)

This quote evidences the importance of getting to know a child before you can gather information regarding their capacities or insights. It also shows that legal professionals and decision makers such as judges, yearn for more information about child development and methods to gather such information. Most of the child development experts noted that an important part of assessing the capacity of children involves physically spending time with the child, and being with the child in the moment of participation. Many participants noted the importance of spending real time with these children in order to gain insight into their capacity level. The quality of time is also critical to consider in combination with the duration of time. Thus, as professionals, it is important to consider the amount and type of time that will be spent with the child, as described by one social worker:

… being with the child, playing with the child and during these moments of drawing, playing or doing, then you can ask questions and observe how the child reacts in a setting they have created and they are leading, this is when the magic happens, it is a lot more than a verbal conversation you need to spend real time with these children- Participant H (Social Worker, Therapist)

The importance of these seemingly simple moments of drawing or playing helps develop an ineffable connection that is led by the child. Another critical element is the space in which an assessment with a child is completed. This environment must be tailored in order to ensure the child feels safe, comfortable and in control. Most of the participants noted that the environment in which they work with a child is a key factor, and if a new capacity tool was to be introduced it would have to accommodate the spaces children find most comfortable. This may require practices that unfold in unconventional settings; one participant provided an example which displays the value in prioritizing a child’s choice of environment.

… one child loved to ride horses, and so the interview was actually done while the child and social worker were riding horses! I really believe in that, the more confident the child is, they are doing their own thing something they love, the more you can get to what they really think, you are in their space now. Right now, we have a somewhat standard way of hearing children and that is, come to court. We need different methods and settings.- Participant B (Judge)

This quote suggests that evolving past standard methods of assessment can be invaluable to connecting with children and supporting their participation. Unique setting that make children comfortable and confident hold value to the interview or rapport building stage of any assessment. As professionals, the participants identified that it can be very intimidating for any child to speak to adults, especially those in power. This is especially relevant when the child is out of their home and in a setting such as a visitation center or a court room. These power dynamics are critical to mitigate and adjust in order to make any child participating feel at ease, a judge provided one example:

… she was playing with this doll the whole interview, it was very important for her. All her nerves and energy, she put into that, and I could tell she was very nervous. Then usually I will sit somewhere in the room where the child doesn’t have to look at me if they do not want to. So, if she didn’t want to see me, she didn’t have to. You have to set the room to make the child comfortable.- Participant B (Judge)

This evidences the effectivity of adjusting an environment or practice to meet children where they are at. Creating a comfortable environment for the child is an efficient approach to speaking and engaging with children, however another effective method of assessment is through observations. A child interacting within their natural environment and displaying autonomous behaviors can be extremely valuable to observe for assessment purposes. One participant alluded to the value of observations by stating,

Observations are important, you can see the quality of interaction between parent and child. I usually would give a child and parent a type of play, usually something difficult. This way you can see how the parent reacts and interacts with the child so you can see how they take charge. Are they responsive? Are they attuned to the child’s needs? Do they follow the child’s lead? And when the assignment gets to complicated what they do, both the parent and the child. These will both help gather an idea of a child’s capacity.- Participant F (Social Behaviour Scientist)

As made apparent by this quote, the importance of observing children with their parents is another critical step in order to gain insight into a complete picture of a child’s capacity. Further, when interacting with children, majority of the participants mentioned the significance of letting the child tell their story through their lead, their experiences and what they identify as the most relevant information. A children’s narrative can be collected in a more meaningful way when instead of focusing on what information is important within that story, the voice of that child is truly heard. One social worker noted the importance of listening to children’s narratives:

When you start a conversation with a child with a focus on ‘I want to know the answer to my questions’ then it simply will not work. So, you really have to focus the purpose of the conversation to ‘I want to hear the child’ instead of having your list of things you want answered. That is how you will get their authentic story and thoughts.- Participant I (Social Worker)

Focusing on the purpose of the conversation as wanting to hear the child’s authentic voice, rather than answer a list of pre-determined questions repositions the professional to meaningfully hear the child. Another critical element is keeping children involved as key agents throughout the proceeding. Many participants from legal backgrounds felt, if a child is involved from the onset of the proceedings, they must be kept informed throughout the entire process. If you include a child’s voice, for example, and the decision or outcome of the proceeding does not replicate what that child exactly wanted, the child has a right to be guided through how that decision was made. If children are present when voicing their opinions, they need to be present for the results as well, that is an important in-person conversation that must be had. One participant, a judge who deals with custody proceedings, noted that this is still an area that needs improvement.

… that is something that is lacking I think still. We tend to talk to children and say, ‘well there will be a ruling in four weeks’, and that’s it. You know? They don’t get to hear through us what the ruling was, let alone what we did with their opinion. It is critical to keep the child involved throughout the proceeding if they start to be involved … if you talk to a father who says the child wants to live with him and then you speak with the child and he says, ‘I really don’t want to live with my dad, but I am too scared to tell him that’, then you don’t want to explain your ruling through what you heard through the child, but then it looks like you didn’t do anything with their opinion, but you did. So sometimes it is hard to let a child know how you incorporated their opinion into your ruling, but you must try to as much as possible.- Participant E (Judge)

Including children means involving them throughout the entire process as made evident through this quote. Explaining a ruling to children in a way they can comprehend is important so the child can know their voice was seriously considered and included. Adapting such a process to the interests of the child is critical. There is also value in allowing the assessment method to be tailored toward the chid for example, each participant noted when discussing critical methods of assessment, that the element of play is crucial for children of all ages. In this sense, the assessment meets the child where they are at and respects the rights of children involved in family law proceedings. One participant especially highlighted the relevance of play by stating:

Play is one of the most important tools, further, I would argue that play is the language of children.- Participant C (Social Worker, Therapist)

Play is just one example of an effective method of assessment when working with children. The findings presented in this section provide various child-friendly examples or techniques that should be applied to a new standard of practice when considering the capacities of children in family law proceedings.

Who should assess?

When considering a new approach or standard of practice regarding child-friendly methods, it is important to contemplate which professionals would be involved. The participants were asked about the potential for a unique assessment tool that could give users insight into young children’s capacity levels, all agreed it was critical who would be applying such an instrument. Initially, all participants agreed a tool that aimed to assess the complicated and multifaceted capacities of children to participate would be a critical way to gain insight into that child as an individual. One participant in particular noted the need for a new approach,

I think a tool like this would be helpful for legal professionals to essentially get a “user manual” to the child in a technical sense, that would really help us interact with them. With all our best intentions, we are still not complete child experts, most of us aren’t.- Participant E (Judge)

This evidences the need for a new standard or assessment that can act as a guide for a professional to effectively interact with children. All participants agreed legal professionals play a large role in family law proceedings and verdicts, however most felt that the professional to implement such a capacity assessment tool must possess both legal knowledge and extensive experience with speaking to children. It is important whichever professional conducts the aforementioned suggested assessment tool bridges the gap between child protection workers, judges, social work, and psychology and brings an interdisciplinary approach to speaking with children in family law proceedings. This approach would help ensure the professionals are speaking the same language, the language of children. Addtionally, the frequency of meaningful interactions with children are critical, one social worker noted,

… the hope is that when the child speaks two or more times with someone who is more qualified to do that, you will get, in my opinion, a better view, of the capacity of the child and the interests of the child.- Participant K (Social Worker)

Having a professional speak with a child multiple times, is extremely important in order to gain insight into a child’s views and perspectives. Such a practice would need to be implemented into any new standard or assessment. The difficulty of developing a complex and multifaceted tool also lays within the setting it would be implemented within. An assessment tool would involve both the social science field and the legal field, and would have to work collectively with both. This is challenging as from a developmental viewpoint of a young child, collecting information regarding their capacities is time consuming and complicated. This could involve discussing the child’s history, their social connections, school, relationship with parents and many other factors. This can be a problem when attempting to use such a tool in a legal setting as one lawyer outlined,

… all of the information surrounding a child is important, but what the difficulty with that is, you also want the judge or lawyer to have that information in sufficient time. So of course, when it is so intense you need a lot more time. You need to look for a balance between getting knowledge about the capacity of that child in the time that the proceedings take. -Participant G (Lawyer, Mediator)

This excerpt evidences the importance of considering a holistic view of the child within a reasonable time frame that will satisfy family law proceedings. This balance between gathering insight regarding the development of children and maintaining an efficient time frame is challenging. As mentioned, considering the potential for a tool that can assess the capacity of children to participate in custody and access proceedings involves the development of a bridge between practice of child development experts as well as legal professionals. The tool cannot be created or applied as an individualized practice, but rather, must be a combined effort between all professionals involved to emphasize and support the participation of children. Overall, many participants saw potential in a capacity assessment tool and acknowledged its potential importance in family law proceedings. One social worker emphasized the utility and value of a new assessment standard or tool,

I think a capacity assessment tool would be very valuable, because in this work it is important to make things objective because of the conflicts between the parents. So, if you have a tool that says it is acceptable to talk to this child, to listen to this child, to include the voice and meanings of this child, I think that would be extremely helpful.- Participant H (Social Worker, Therapist)

This quote provides evidence of the request for a new approach, as necessitated by professionals in both the child development and legal fields. Gathering insight into a child’s capacity would prove to be very helpful for all professionals, regardless of who implements the assessment. Another important element when discussing who should be assessing or supporting children through these processes was consistency. Participants frequently mentioned that a child should be assisted by mainly one professional who supports him or her throughout the process. Essentially the notion of having one advocate or guardian ad litem for the child even prior to court proceedings, mediation or any separation process is valuable and necessary as outlined particularly by one participant:

… if you can make changes to the current situation where children are at the end of everything and get them instead to be put first, and more in front of the conflict, that is extremely valuable. If you were able to give children one person they can trust that will guide them through everything, I think that would be massive. – Participant J (Lawyer, Mediator)

This supports the notion that whichever individual is working with the child professionally must spend extensive time gathering information regarding that child’s current and past narrative. This is a process that takes intensive work alongside the child. The relational elements of working with the child are critical for these professionals according to one social behavior scientist,

It is important these professionals are trained to talk to children, but not only once, they have to, I think, work with children for more than a few weeks and then you can advise the judge in line with the statements of the children. This is real relational work, you need to know who this child is, not just what they think.- Participant F (Social Behaviour Scientist)

This quote provides an example of the importance of relational work with children which can take time. Who assesses children’s capacity is important to consider, but how the assessments are carried out by professionals is also critical. Further, when delegating who should assess, be involved within family law proceedings or implement a new capacity assessment tool or standard, the need for a more connected, interdisciplinary approach is apparent and necessitated.

Discussion

Overall, the results indicate congruence between the groups of law and social professionals and their perspectives regarding the capacities of children. The participants considered children under the age of twelve to have the capacity to meaningfully participate in custody and access proceedings. Further, many of the participants had practical examples of working with young children who were capable of describing their parent’s separation or conflict and their feelings toward the proceedings.

This study intended to explore the differences in professional opinions and experiences between participants from a legal background and participants from a social science or child development background. Interestingly, many professionals agreed on similar elements that collectively must be considered when assessing the capacity of a child to meaningfully participate in custody or access proceedings. Professionals from both backgrounds mentioned the importance of not only age, expected developmental trajectories, and intellectual capacities but also the multifaceted emotional capacities of children.

When asked about the important factors that compose a child’s capacity, the participants offered similar responses. A vast difference within the research between participant groups was their approach to children’s rights. Many of the legal professionals were versed and familiar with the United Nations Convention on the Rights of the Child (UNCRC, 1989). Opposingly, many of the professionals from a social science background held knowledge, but the information they could provide was vague. Social science professionals attributed this to the inherit rights of children that is often embedded in their day-to-day practise.

The findings indicated that all participants agreed, current models are lacking, in involving children but especially limited in terms of unification of professionals. Many of the professionals noted the current model of custody and access proceedings and participation of children in family law proceedings involves working in a siloed manner as opposed to a interdisciplinary approach.

The call for a uniquely trained professional who has both legal training and knowledge regarding child development is required to effectively meet the needs of children participating (Powell & Lancaster, 2003). Lawyers, judges, and social workers vary greatly in terms of training. Social workers often acquire knowledge and experience interviewing children or determining developmental capacities of children. Opposingly, lawyers or judges hold extensive knowledge in regards to relevant laws, policies, and precedence. Ideally a professional working with children, aiming to gather insight toward their capacity level as it pertains to meaningful participation in a family law proceeding, should possess a combination of training and knowledge. The development of a specific training program for a professional working in this practice is required.

Participants all responded eagerly and in a positive manner when asked about the potential of developing a capacity assessment tool or standard for children under the age of twelve to meaningfully participate in family law proceedings. However, many mentioned such a tool would be complicated, and multifaceted. Furthermore, such a tool should not necessarily be used in all proceedings, but it could help support those especially conflictual or sensitive cases. Many current evaluation structures surrounding children’s best interests and custody arrangements are heavily criticized, the need for a new approach is evident across literature (Forslund et al., 2021; Rohrbaugh, 2008). This is when professionals must consider the interests of the child in a deeper way and reflect upon perhaps not the child’s best interests, but their best options.

Participants within this research agreed, though every child is unique and their capacities are vastly different, with the appropriate professional and assessment, the capacity of each child to participate in a meaningful way can be assessed. There are child-friendly methods that may not be as easy to use as a standard interview guide, but will respect the rights of children and allow them to display their capacity levels (Rohrbaugh, 2008; Van Bijleveld et al., 2018). Advancements in research regarding children’s rights and participation has displayed that children want a voice in decisions that affect their lives and research supports their capabilities to do so (Alderson, 1992; Van Bijleveld et al., 2018). With these developments in child-focused research the requirement for a new child-friendly, co-created assessment method is evident. The use of child-friendly techniques was emphasized by the professionals through recommendations, and personal examples of how to involve children and create an assessment that prioritizes their voices, thoughts, opinions and wishes.

Finally, the rights of children involved in custody, access, and family law proceedings must be maintained and prioritized through all participation efforts. It is critical for children’s rights to be embedded into family law proceedings in a more practical, applicable manner. Many participants emphasized, it is simply not enough to consider what is in children’s best interests, more must be done to include these children in a meaningful way.

Future directions

Within this study, though valuable information and insight was gathered on the topic, it is important to note that the sample was too small to make any definitive conclusions in regards to children’s capacities. However, this research gathered many valuable opinions and experiences of professionals within the field of family law proceedings. Further research in this field is required in relation to the evolving capacities of children. The findings emerged from this research, offer a starting point for critical discussions across the field of legal settings, in the psycho-social settings of children and how to connect these experts most efficiently. Many participants mentioned the importance of the participation of children in child protection cases as well and thus, professional opinions in that area and their relation to capacity should be sought out in future research. Finally, though this research paper was intended to explore what the professionals think of capacity, participation, and children’s rights, it is imperative in future research children and their families are also included.

Conclusions

This qualitative study aimed to collect the knowledge, perspectives and expertise of professionals in the fields of child development and family law settings in order to gain insight into recommendations for a new capacity assessment tool or standard for children to meaningfully participate in custody and access proceedings. Though the sample size within this research was relatively small, this article can be considered as an effective collection of expert opinions. The key findings indicate that all participants thought assessing the capacities of children under the age of twelve, though complicated and intricate, was an entirely possible and necessary undertaking. Majority of the professionals believed current models of the participation of children under the age of twelve in custody proceedings are ambiguous and unclear. Further, almost all participants noted a new comprehensive assessment or standard of practice is required. A capacity assessment tool would be designed and intended to work with younger children to gather insight into their levels of capacity in the areas of emotional, psychological, and cognitive abilities. The rights, voices and participation of children must be primarily considered when dealing with matters that involve them, such as a custody dispute. It is critical to consider the findings and apply the recommendations to future research which will aim to create a new capacity assessment or standard in order to encourage interdisciplinary practice of legal and child development professionals and mostly importantly, actualize children’s meaningful participation.

Disclosure statement

No potential conflict of interest was reported by the author(s).