Hearing the Voice of a Child and Thresholds for Making Legal Decisions

There have been tensions in Australia between professionals who emphasise a need to protect children who want to make their own decisions about legal topics that affect them, and professionals who advocate that young people be granted a greater role in making their own decisions about legal matters that impact on them. This chapter observes that the Australian legal system currently appears to assess the capacity of young people to make decisions on a dichotomous or 2-point scale as being either competent or incompetent. While the Australian legal system recognises the concept of a mature minor, the concept is not well defined. Researchers have considered a possibility of adopting a 3-point scale of capacity to decide that includes a transitional stage or an intermediary level of capacity. The current legal concept of capacity to consent appears to prioritise the criterion of age of a young person over other criteria. This chapter proposes that greater recognition can be given to the capacity of a young person to demonstrate their understanding of topics where they want to make their own decisions, and to demonstrate their emotional maturity to accept responsibility for implications of decisions they make. This chapter also reflects on how children who have been removed from parental care and placed into out-of-home care might view decision-making processes when they are aged 18 years when they are authorised to obtain documents submitted to court about their individual circumstances.