4.3 Formidable barriers prevent or limit children’s participation in legal processes. One of these barriers relates to children’s developmental capacity and is not entirely amenable to improvement. Other barriers are created by the assumptions of an adult legal system about the
4.3 Formidable barriers prevent or limit children’s participation in legal processes. One of these barriers relates to children’s developmental capacity and is not entirely amenable to improvement. Other barriers are created by the assumptions of an adult legal system about the legal capacities of children to participate and by the processes themselves that were designed by and for adults. This Report has attempted to address these barriers through recommendations that set out what children need to know to deal with the legal process (developmental capacity), how children should be engaged appropriately within the legal process (legal capacity) and how to ensure that the legal process itself does not add to the problem (the adult system).
Developmental and legal capacity to participate
4.4 Formal participation by children in legal processes requires that children understand the process and its requirements, and have the intellectual, emotional and psychological skills necessary to negotiate the process and to persist in their pursuit of a particular goal. Many adults do not have these abilities and have considerable difficulties in dealing with legal processes. However, these difficulties are significantly magnified for children. Indeed, these skills themselves are often associated with levels of development and maturity. Many children are unlikely to have the skills and experience necessary to participate successfully in legal processes without assistance.
4.5 Traditionally, the law has used general assumptions about children’s developmental capacities to decide a particular child’s legal capacity to participate in legal processes. These assumptions applied to all children what may be true of only a few. For example, young children have been traditionally viewed as incompetent to give evidence based on assumptions that they are untruthful, suggestible, prone to fan