Giving Children’s Views “Due Weight” in Medical Law

Abstract

Article 12 with its concern to give “due weight” to children’s views involves potential contradictions between human rights to self-determination and children’s rights. A set of conditions in Article 12 turns rights into highly qualified permissions that can transfer agency and control from children onto adults. These are further complicated by reports by the UN Committee on the Rights of the Child and others that position children’s best interests against their expressed views, and by contrasting standards set by national laws and guidance. Theories about children’s rights in medical law differ from actual practice in reported cases, which are influenced by long-standing theories about childhood in philosophy and psychology that disregard realities in children’s lives. Barriers to due respect for children’s views in medical law and practice that need to be addressed are summarised.