Inaugural Workshop, Winter 2009:
The Capacity of Children to Participate in Legal Decisions Affecting Their Welfare
Many of the current debates in the law regarding children and youth turn on a child's capacity to understand the environment and make decisions about important matters affecting their welfare. Current scientific development from psychology, medicine, psychiatry and neuroscience may be able to enrich and inform discussion, provide some insight, and perhaps help chart a direction for future law reform.
VISION FOR INAUGURAL WORKSHOP
The first Johnson Children and The Law Workshop will address the capacity of children to participate in legal decisions affecting their welfare. For instance, under what circumstances can a child give meaningful direction to his lawyer or the court in child protection or custody cases. In the context of divorce custody: When should a court be required to inquire as to a child's preferences? How should this be done? What weight should be given to a child's stated preference at various ages and under various circumstances? A similar set of questions arises when the child has appointed counsel in either divorce child custody or child protection cases. At what age should the lawyer represent the child's stated wishes? At what age best interests? How is a lawyer to determine the goals of such litigation, i.e., the best interests of a child? What weight is to be given to the child's expressed wishes? These questions depend on a child's competence at various ages, but how is a lawyer or court to evaluate a child ability to make such important judgments? None of this ground is close to being settled in the law. Is there guidance available from child development scientists?
In juvenile delinquency matters the growing body of brain development research raises new questions of the propriety of holding youth to the same standards of adults in punishing them for criminal behavior. But the courts and legislatures are confused about how to evaluate and apply the latest and best scientific information on such questions. For instance, in Roper v Simmons, the case that declared the death penalty unconstitutional for crimes committed by juveniles. Justice Scalia in dissent soundly criticized the APA for inconsistency:
We need not look far to find studies contradicting the Court's
conclusions. As petitioner points out, the American Psychological
Association (APA), which claims in this case that scientific evidence
shows persons under 18 lack the ability to take moral responsibility
for their decisions, has previously taken precisely the opposite
position before this very Court. In its brief n Hodgson v Minnesota,
497 U.S. 417 (1990), the APA found a "rich body of research"
showing that juveniles are mature enough to decide whether
to obtain an abortion without parental involvement.
Brief for APA as Amicus Curiae, O.T. 1989, No. 88805 etc., p. 18.
The APA brief, citing psychology treatises and studies too numerous
to list here, asserted: "[B]y middle adolescence (age 14-15) young
people develop abilities similar to adults in reasoning about moral
dilemmas, understanding social rules and laws, [and] reasoning about interpersonal relationships and interpersonal problems." Id., at 1920
(citations omitted). Given the nuances of scientific methodology
and conflicting views, courts which can only consider the limited
evidence on the record before them are ill equipped to determine
which view of science is the right one.
Is there a scientific foundation based on the best child development research to guide the law in drawing these lines? Is a general theory available that would guide law makers to treat children and youth consistently when it comes to granting rights, expecting them to have a voice, holding them accountable for actions? Perhaps a harmonious theory of child development for law and lawyers is not appropriate and the law should presume more capacity and autonomy when granting rights and less capacity when applying punishment?
This topic is coming to the top of the national child welfare agenda. The National Council of Commissioners for Uniform State Laws (recently renamed the Uniform Law Commission) is making recommendations for a model act on the topic. The ABA Litigation Section has developed its own model act for representation of children to be considered by the ABA General Assembly. The ABA Family Law Section convened a joint meeting with the American Psychological Association in Chicago in May 2008 on the question of a child capacity to give meaningful input to the court on questions of their custody. These issues will not be resolved any time soon. Our unique position within a university, drawing broadly on other disciplines, will allow us to take this on, analyze the problems carefully and develop some unique policy recommendations.
The Children and the Law Workshop will be interdisciplinary and invites students and faculty from a range of disciplines including law, medicine, psychology, and psychiatry.
Law students and non-law students interested in enrolling in the Children and the Law Workshop should contact Alicia Lixey at lixey@umich.edu.
We invite any interested persons to participate in the workshop both by attending our guest speaker lectures and by participating in the cooperative brainstorming "work in progress" discussions between March 11 and April 15. The "work in progress" sessions will be held on Wednesdays from 1:30 to 3:30 in the UM Law School Library Seminar Room S-106. We will post the specific topics on this website once we have completed that part of our schedule.
In the first seven weeks various speakers will provide a backdrop and context for the issues we are exploring. This will be pretty traditional in that we will assign readings and engage in discussions based on the lectures and readings. In the following weeks each research team will frame and present their project to the entire group. This presentation will be "works in progress" and will be in the spirit of cooperative brainstorming where all of us will be engaged with problem-solving and help each group perfect its final product. Finally, in a final meeting, we will organize a final report from each of the six research groups.
Our goal is to arrive at final products that can be disseminated in some way to policymakers and others who might benefit from our work. For instance, a group of Yale Law students, addressing models of representing parents in protection cases, circulated a report to each member of the Connecticut legislature. We will certainly have our work products available here on the Johnson Children and the Law Workshop website.
The Winter 2009 Johnson Children and the Law Workshop will consider several current topics in law that could be informed by recent science about children and their development. For instance:
The law has struggled in its response to juveniles who commit crimes. Are juveniles "mini-adults" who should be tried as adults when the seriousness of the crimes mandates such a result? Or do juveniles lack the capacity and judgment to be deemed as culpable as those over 18 who commit the same crimes? Should the law categorically prohibit children from being tried as adults under any circumstances because of their lack of capacity?
How have jurisdictions approached this problem? Given what we know about child development, what should a model policy be? What recommendations do you make?
Over the past ten years, many advocates for children have pushed for increased participating of children in court proceedings. Children often appear in court and participate in proceedings affecting their lives - such as foster care or child custody cases—in myriad ways including observing the process, testifying in open court, or meeting with judges in chambers.
A number of people, however, continue to believe that exposing children to the court process may inflict unnecessary emotional harm on children. Decisions should be made by adults, not children, because children lack the capacity and maturity to participate in the process. Adults should do their best to shield and protect children from the process.
How have jurisdictions involved children in the court process? How should children be involved? How is your recommendation informed by knowledge of child psychology?
The Supreme Court has repeatedly held that parents have a constitutionally protected right to direct the care and custody of their children. Implicit in this recognition has been the assumption that parents are best suited to make good decisions for their children and that state intervention, unless absolutely necessary, only hinders that process.
But do these principles apply to teen parents? The current state of the law allows a teen parent who is legally incompetent to enter into a contract or consent to her own health care, to take full responsibility for her child. Should the law grant teen parents the presumption of good decision-making? Or instead should the law place the burden on young parents to prove that they are able to execute the responsibilities of parenthood? How have jurisdictions responded to this tension? How should the tension be resolved?
When representing a child in protection cases, should the advocate be client-directed, that is guided by the child's stated wishes, or should the advocate represent what he or she judges to be in the child's best interests? This is one of the central conundrums in child advocacy. Strong voices on either side declare either that children lack capacity to make such sophisticated judgments regarding their future or that the child's essential personhood requires advocacy for their voice and legal interests and not the substituted judgment of an attorney representing the "best interests of the child"? Without the discipline of client direction, the fear is that the attorney will merely impose his or her values on the child or side so consistently with the intervening state as to be primarily a force for breaking up poor families.
Some urge an alternative third way, that is to adopt two distinct lawyer roles for children and establish a "bright line rule" whereby children under a certain age, say 7 or 10, have lawyers charged with representing the child's best interests but lawyers representing children over that age adopt a traditional attorney-client relationship, that is owing the same duties of zealous representation of the child's expressed wishes as the attorney would to an adult client. Yet current psychological science indicates that there is a great deal of variation in the maturation of youth so that some acquire cognitive skills and judgment at far different rates than others. So given the variation in the rate of maturation, a bright line rule would not be wise.
The majority of academics and child advocacy organizations favor a "client directed" approach. Most state statutes mandate a "best interests" approach. Several national organizations are poised to recommend model acts within the coming year for the representation of children in protection proceedings. How should the child participate in setting the goals of the advocacy? How should the balance be struck? Should the lawyer act based on the child's wishes or the child's best interests?
In legal proceedings affecting the child's welfare, the weight given to a child's stated wishes and preferences generally depends on the child's mental competence and maturity. But these assessments of competence or capacity are done by lawyers and judges with no real training or guidance in how to do so. How should that capacity be assessed? Age is the most common "marker" for such determinations. The evaluation of a child's maturity is generally made without benefit of sophisticated psychological evaluations. It happens in private conversations between the judge or lawyer and the child or by observing a child in the unnatural setting of a court room or on the witness stand.
Especially for the middle-years child, from ages 7 to 14, capacity is not an either-or proposition. Children mature at different rates and may be capable for some judgments but not for others. Some have proposed a metaphor of the "dimmer switch" where capacity is not an "on or off" phenomenon but rather a sliding scale where the child may be able to participate in decisions on some issues (on some days) but not others. A child's capacity then, is a broader spectrum where children may be able to contribute various amounts to guide the representation if the lawyer or judge properly appraises the child's unique individual facility.
But how are lawyers and judges to make these sorts of assessments? Are there tools to assess competence that could be incorporated from other fields, such as assessing people with dementia or cognitive impairments that could guide the lawyers and judges in making such assessments? Is it possible to develop a tool or instrument for such purpose? Are protocols for this sort of evaluation available or could they be developed.
One of the unexamined areas of child welfare law is emergency removal of the child and particularly assessing the options to protect the child from harm short of removal from the caregivers to whom the child is attached. If an adult is facing a risk or challenge or slips and falls, our common question is "Are you OK?" A child cannot assess his or her safety, or OK-ness, but must rely on others to do so. The child pays a significant psychological price if removed from their psychological parent, but that is often necessary to protect the child's psychical and psychological well-being. But can that calculus, that cost-benefit analysis weighing the risks of serious harm against the harm presented by removal, be unpacked? Is it possible to provide criteria, legal standards and protocols for assessing the risk that a child faces in an alleged child abuse or neglect situation and properly weighing that risk against the consequences and risks of removal? These decisions about personal safety and risk tolerance are made by adults all the time. Can we develop criteria for doing so in the child protection context where the child cannot speak for himself or herself?
A common slogan is, "remove the danger, not the child." Yet child protective services and courts around the nation overreact to a large number of cases (while missing others). Our recent "Mike's Hard Lemonade case" where a 7-year old was placed in foster care for two nights because his UM Classics Professor father inadvertently gave him a Mike's Hard Lemonade at a Tiger's baseball game, whose the unsatisfactory laxness of current standards in evaluating risks to a child.
Currently the law requires that "reasonable efforts" be made to prevent or eliminate the need for removing the child from the child's home. Arguably, constitutional principles require the least restrictive alternative intervention. Currently there is considerable interest in re-assessing and perhaps improving the legal standard for removal, assessment of alternative ways to protect the child without removal, like removing the alleged perpetrator, and development of protocols for assessing danger. Most children, if able to articulate their own preferences, would ask to stay in their current home -- but without being harmed any further. Can you develop approaches to assessing and minimizing harm at the point of first removal of the child? Can you design ways to assess the risk to the child under circumstances where the child cannot speak for him or herself or whose judgment is too immature to be given controlling weight?