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A capabilities approach to best interests assessments

Published online by Cambridge University Press:  11 February 2021

Michael Thomson Open the ORCID record for Michael Thomson [Opens in a new window]
Michael Thomson*
Affiliation:
University of Technology, Sydney, Australia and University of Leeds, Leeds, UK
*
*Author email: michael.thomson@uts.edu.au
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Abstract

It is an accepted principle of domestic and international law and policy that the welfare or best interests of the child must be the primary or paramount consideration in any decision made with regard to that child's upbringing. While this ‘best interests standard’ has become a core principle of welfare law, what might constitute a child or young person's best interests is given very little formal shape or content. This has provoked sustained criticism from practitioners, academics and the judiciary. In response, this paper argues that the capabilities approach can give best interests assessments much needed normative content, thereby addressing many of the criticisms directed towards the standard. The approach provides a theoretically nuanced framework for theorising about basic social justice and for evaluation, deliberation, and policy development across social welfare sectors. In arguing for a capabilities approach to best interests assessments, the paper sets out an agenda for change. It addresses the conceptual and methodological justifications for this change, and explores the empirical work that would be required. It identifies the steps and underlying principles necessary for a best interests process aligned with the capabilities approach, providing the necessary foundations for a radical reconceptualisation of best interests processes.

Keywords

family lawchild lawcapabilities approachchildren's rightsbest interestwelfare
Type
Research Article
Information
Legal Studies , Volume 41 , Issue 2 , June 2021 , pp. 276 - 293
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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Footnotes

†

I would like to thank Ray Carr and Joshua Warburton for research assistance and Beth Goldblatt, Rosie Harding, Helen Stalford and the journal's anonymous reviewers for their comments on earlier drafts of this paper.

References

1 For an account of the historical emergence and development of the best interests standard see Daly, A Children, Autonomy, and the Courts (Leiden: Brill, 2018) pp 73–82CrossRefGoogle Scholar.

2 In the UK and a number of other jurisdictions, the best interests standard is also mobilised in decision-making involving people who are deemed to lack capacity. This is enshrined in the Mental Capacity Act 2005. A growing literature has questioned the legitimacy of this standard in light of the requirements of the UN Convention on the Rights of People with Disabilities. See for example Harding, R ‘The rise of statutory wills and the limits of best interests decision-making in inheritance’ (2015) 78(6) Modern Law Review 945CrossRefGoogle Scholar; Series, L ‘The place of wishes and feelings in best interests decisions: Wye Valley NHS Trust v Mr B’ (2016) 79(6) Modern Law Review 1101CrossRefGoogle Scholar; Johnston, C ‘Patient narrative: an “on-switch” for evaluating best interests’ (2016) 38(3) Journal of Social Welfare Law 249CrossRefGoogle Scholar; Donnelly, M, ‘Best interests in the Mental Capacity Act: time to say goodbye?’ (2016) 24(3) Medical Law Review 318CrossRefGoogle ScholarPubMed. While the argument presented here draws on shared criticisms of the standard in both contexts, the proposed reforms address only those assessments concerning children.

3 See below section 2.

4 For an example of a positive intervention, see Daly, above n 1. Daly's ‘Children's Autonomy Principle’ is considered in section 5(b) below. It is also worth acknowledging the work that has taken place in bioethics to argue that best interests needs to be supplemented by a consideration of ‘harm’. See, most influentially, D Diekema ‘Parental refusals of medical treatment: the harm principle as threshold for state intervention’ (2004) 25 Theoretical Medicine and Bioethics 243. However, this has faced some of the same criticism; specifically, that it fails to address the key issue of indeterminacy. As Giles Birchley argues, ‘All we have done is rename the best interests test while dealing with none of its failings’: G Birchley ‘Harm is all you need? Best interests and disputes about parental decision-making’ (2016) 42 Journal of Medical Ethics 111 at 114. The idea that ‘harm’ has a pivotal role in the test was recently rejected by the court in Re Charles Gard [2017] EWCA Civ 410, para 105. See Cave, E and Nottingham, E ‘Who knows best (interests)? The case of Charlie Gard’ (2017) 26(3) Medical Law Review 500Google Scholar.

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10 Aoife Daly also argues for retaining the standard on the basis that it necessitates that we focus on the child's interests (above n 1, p 82), but argues that it is flawed in the way children's wishes are treated. Helen Stalford and Kathryn Hollingsworth similarly defend the best interests principle, arguing that current weaknesses in its application derive – in part – from the general failure to recognise best interests as a distinct right: H Stalford and K Hollingsworth ‘Judging children's rights: tendencies, tensions, constraints, and opportunities’ in H Stalford et al (eds) Rewriting Children's Rights Judgments: From Academic Vision to New Practice (Oxford: Hart Publishing, 2017) p 35.

11 Godbout, E et al. ‘Positions taken by judges and custody experts on issues relating to the best interests of children in custody disputes in Québec’ (2015) 29(3) International Journal of Law, Policy and the Family 272 at 273CrossRefGoogle Scholar.

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14 Ibid.

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18 While the approach has made less impact on legal studies than some other disciplines, see the following examples from legal scholars: S Deakin The ‘Capability’ Concept and the Evolution of European Social Policy (ESRC Centre for Business Research, University of Cambridge Working Paper no 303, 1, 2005); Goldblatt, BA ‘Gender and social assistance in the first decade of democracy: a case study of South Africa's Child Support Grant’ (2005) 32(2) Politikon 239CrossRefGoogle Scholar; S Deakin and A Koukiadaki The Capability Approach and Corporate Restructuring: UK Sectoral and Enterprise-based Case Studies (Resources Rights and Capabilities in Europe, Cambridge Centre for Business Research 50, 2009); S Deakin and R Rogowski ‘Reflexive labour law, capabilities and the future of social Europe’ in R Rogowski et al Transforming European Employment Policy: Labour Market Transitions and the Promotion of Capability (Cheltenham: Edward Elgar, 2011); R Dixon and M Nussbaum ‘Children's rights and a capabilities approach: the question of special priority’ (2012) 97 Cornell Law Review 549 at 564; M Fox and M Thomson ‘Realising social justice in public health law’ (2013) 21(2) Medical Law Review 278; R Del Punta ‘Labour law and the capability approach’ (2016) 32(4) International Journal of Comparative Labour Law and Industrial Relations 383; R Claassen and A Gerbrandy ‘Rethinking European competition law: from a consumer welfare to a capability approach’ (2016) 12(1) Utrecht Law Review 1.

19 Stalford and Hollingsworth, above n 10, p 34.

20 Ibid, p 35. Further difficulties arise with differing detail in the formulations, whether this is reliance on ‘paramount’ or ‘primary’ at international and domestic levels, or the shift between ‘a primary’ and ‘the primary’ within different UK provisions. For a consideration of the different phrasing see D Archard Children Rights & Childhood (London: Routledge, 2nd edn, 2004) p 67.

21 Stalford and Hollingsworth, above n 10, p 30.

22 ZH v (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 or R (on the application of SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449.

23 See for example Re G (Children) [2012] EWCA Civ 1233 and Re M (Children) [2017] EWCA Civ 2164. For a discussion of these cases see D Monk ‘Muscular liberalism and the best interests of the child’ (2018) 77 (2) Cambridge Law Journal 261.

24 See below, at n 106.

25 Stalford and Hollingsworth, above n 10, p 30.

26 Ibid.

27 I Kennedy Treat Me Right (Oxford: Clarendon Press, 1992).

28 Daly, above n 1, p 72. R Mnookin ‘Child-custody adjudication: judicial functions in the face of indeterminacy’ (1975) 39 Law and Contemporary Problems 226.

29 Birchley, above n 4.

30 J Eekelaar ‘The role of the best interests principle in decisions affecting children and decisions about children’ (2015) 23(1) International Journal of Children's Rights 3.

31 Birchley, above n 4, at 111.

32 McGuinness, above n 12, at 210.

33 Choudhry, S ‘Best interests in the MCA 2005 – What can healthcare law learn from family law’ (2008) 16(3) Health Care Analysis 240CrossRefGoogle Scholar; Taylor, HJ ‘What are “best interests”? A critical evaluation of “best interests” decision-making in clinical practice’ (2016) 24(2) Medical Law Review 176CrossRefGoogle ScholarPubMed.

34 Daly, above n 1, p 94.

35 M Fox and M Thomson ‘Reconsidering “best interests”: male circumcision and the rights of the child’ in G Denniston et al (eds) Circumcision and Human Rights (Dordrecht: Springer, 2009) p 15.

36 Taylor, above n 33.

37 Fennell, P ‘Best interests and treatment for mental disorder’ (2008) 16(3) Health Care Analysis 255CrossRefGoogle ScholarPubMed.

38 Eekelaar, J ‘“Trust the judges”: how far should family law go?’ (1984) 7(5) Modern Law Review 593Google Scholar; King, M ‘Playing the symbols – custody and the Law Commission’ (1987) 17(4) Family Law 186Google Scholar; J Harrington ‘Deciding best interests: medical progress, clinical judgement, and the “good family”’ (2003) Web Journal of Current Legal Issues 81.

39 A Diduck and F Kaganas Family Law, Gender and the State (Oxford: Hart Publishing, 2006) p 301.

40 Daly, above n 1, p 9.

41 See, above n 2.

42 LJ Munby ‘Consent to treatment’ in A Grubb et al (eds) Principles of Medical Law (Oxford, Oxford University Press, 1992) p 548.

43 Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 270 per Brennan J.

44 Re A (medical treatment: male sterilisation) [2000] 1 FLR 549.

45 Fox, M and Thomson, M ‘Bodily integrity, embodiment, and the regulation of parental choice’ (2017) 44(4) Journal of Law & Society 501CrossRefGoogle Scholar.

46 See Diduck and Kaganas, above n 39.

47 See D Bradley ‘Homosexuality and child custody in English law’ (1987) 1(2) International Journal of Law, Policy and the Family 155.

48 See Eekelaar, above n 38; King, above n 38.

49 I Thery ‘“The interests of the child” and the regulation of post-divorce family’ in C Smart and S Sevenhuijsen (eds) Child Custody and the Politics of Gender (London: Routledge, 1989) p 81.

50 H Reece ‘The paramountcy principle: consensus or construct’ (1996) 49(1) Current Legal Problems 267 at 295–296; Diduck and Kaganas, above n 39, p 301. See also Harrington, above n 38.

51 Daly, above n 1.

52 Diduck and Kaganas, above n 39, p 301.

53 J Herring and C Foster ‘Welfare means relationality, virtue and altruism’ (2012) 32 LS 480 at 492.

54 Ibid, at 492, 494.

55 Ibid, at 496–497.

56 Ibid, at 483.

57 Ibid, at 493–494.

58 As Daly writes, the standard ‘permits the imposition not only of society's dominant values, but those values of the types of individuals that become judges – generally white, middle class males (and always adults, of course.) There is evidence that judges’ subjective preferences, rather than rational argumentation, may determine the outcome of cases’: above n 1, p 94.

59 Birchley, above n 4, at 111.

60 Sen (1980), above n 6, pp 195–220.

61 See for example A Sen Poverty and Famines (Oxford: Clarendon Press, 1981); Sen (1992), above n 6; Nussbaum and Sen (eds), above n 6; Sen (1999), above n 6; Sen (2010), above n 6.

62 Nussbaum, above n 5, p 18.

63 I Robeyns ‘The capability approach: a theoretical survey’ (2005) 6(1) Journal of Human Development 93 at 95.

64 Nussbaum, above n 5, ch 3.

65 Sen (2010), above n 6, p 48. The move from resources to opportunities also challenges the economic instrumentalism of the human capital paradigm. As Dreze and Sen note, the ‘bettering of a human life does not have to be justified by showing that a person with a better life is also a better producer’: J Dreze and A Sen India: Development and Participation (Oxford: Oxford University Press, 2002) p 184.

66 Sen (2010), above n 6, p 17.

67 Nussbaum, above n 5, p 18.

68 CS Hart and N Brando ‘A capability approach to children's well-being, agency and participatory rights in education’ (2018) 53(3) European Journal of Education 293 at 298.

69 Ibid.

70 Eg Nussbaum and Sen, above n 6.

71 For a discussion of the differences in their work see Crocker, above n 7.

72 It is arguable that too much attention has been paid to the differences, with commentators forgetting that their ‘approaches are very closely related’ and that they are ‘allies in their critique of theories such as utilitarianism’: Robeyns, above n 63, at 103.

73 Nussbaum has provided a list of central human capabilities, although she stresses that any list must be subject to ongoing revision. She lists: life; bodily health; bodily integrity; senses, imagination, and thought; emotions; practical reason; affiliation; other species; play; and political and material control over one's environment: M Nussbaum ‘Well-being, contracts and capabilities’ in L Manderson (ed) Rethinking Well-Being (Perth, API Network, 2005) p 27 at pp 41–42. See also Nussbaum, above n 5.

74 A Sen ‘Capabilities, lists, and public reason: continuing the conversation’ in B Agarwal et al Amartya Sen's Work and Ideas: A Gender Perspective (London: Routledge, 2005) p 337.

75 Sen (2010), above n 6, p 242.

76 A Sen Resources, Values and Development (Oxford, Basil Blackwell, 1984) p 497.

77 Sen (1992), above n 6, p 43.

78 J Ballet et al ‘Children's agency and the capability approach: a conceptual framework’ in M Biggeri et al (eds) Children and the Capability Approach (London: Palgrave, 2011) p 34.

79 See JM Alexander Capabilities and Social Justice: The Political Philosophy of Amartya Sen and Martha Nussbaum (Aldershot: Ashgate, 2008) p 125.

80 Herring and Foster, above n 53, at 482.

81 Dixon and Nussbaum, above n 18, at 563–564.

82 M Biggeri and M Santi ‘The missing dimensions of children's well-being and well-becoming in education systems: capabilities and philosophy for children’ (2012) 13(3) Journal of Human Development and Capabilities 373 at 377.

83 Ibid. See JM Bonvin and D Stoecklin ‘Children's rights as evolving capabilities: towards a contextualized and processual conception of social justice’ (2016) 23(3) Ethical Perspectives 19.

84 Biggeri and Santi, above n 82, at 378.

85 J Feinberg ‘The child's right to an open future’ in W Aiken and H La Follette (eds) Whose Child? Children's Rights, Parental Authority and State Power (Totowa, NJ: Rowman and Littlefield, 1980) pp 125–126.

86 D Archard Children, Family and the State (Aldershot: Ashgate, 2003) p 31.

87 Feinberg, above n 85, p 130.

88 A Ouellette ‘Eyes wide open: surgery to westernize the eyes of an Asian child’ (2009) 39 The Hastings Center Report 15. See also Fox and Thomson, above n 45.

89 See J Eekelaar ‘The interests of the child and the child's wishes: the role of dynamic self-determinism’ (1994) 8 International Journal of Law, Policy and the Family 42 at 48.

90 There is, however, a significant tension in this position. If an individual wishes to follow a course of action that may significantly limit future opportunities then compromising agency may be warranted. Daly attempts to address this by setting ‘significant harm’ as the threshold for over ruling children's decision-making. See below, text accompanying n 153.

91 Archard, above n 86, p 31; Fox and Thomson, above n 45, at 526.

92 J Qvortrup et al (eds) Childhood Matters: Social Theory, Practice and Politics (Aldershot: Avebury, 1994); J Qvortrup ‘Are children human beings or human becomings? A critical assessment of outcome thinking’ (2009) 117(3/4) Rivista Internazionale di Scienze Sociali 631 at 631.

93 See N Peleg ‘Reconceptualising the child's right to development: children and the capabilities approach’ (2013) 21(3) International Journal of Children's Rights 523.

94 Hart and Brando, above n 68, at 294.

95 M Biggeri et al ‘Children conceptualizing their capabilities: results of a survey conducted during the first Children's World Congress on Child Labour’ (2006) 7 Journal of Human Development 59 at 65.

96 Biggeri and Santi, above n 82.

97 Ballet et al, above n 78, p 33.

98 J Sandars and CS Hart ‘The capability approach for medical education: AMEE Guide No 97’ (2015) 37(6) Medical Teacher 510.

99 A number of other scholars have significantly developed the work on capabilities and education: see for example H Brighouse, School Choice and Social Justice (New York: Oxford University Press, 2000); M Saito ‘Amartya Sen's capability approach to education: a critical exploration’ (2003) 37(1) Journal of Philosophy of Education 17; M Walker and E Unterhalter (eds) Amartya Sen's Capability Approach and Social Justice in Education (New York: Palgrave Macmillan, 2007).

100 Nussbaum and Sen (1993), above n 6. See also Dreze and Sen, above n 65.

101 M Nussbaum ‘Education and democratic citizenship: capabilities and quality education’ (2006) 7(3) Journal of Human Development 385 at 385.

102 See also Dreze and Sen's attention to critical agency, above n 65.

103 Nussbaum, above n 101, at 388–389.

104 Ibid, at 387.

105 Ibid, at 390.

106 [2012] EWCA Civ 1233 at para 80.

107 E Unterhalter et al ‘The capability approach and education’ (2007) 13(3) Prospero 13 at 16.

108 C Buzzelli ‘The capabilities approach: rethinking agency, freedom, and capital in early education’ (2015) 16(3) Contemporary Issues in Early Childhood 203; E Unterhalter ‘What is equity in education? Reflections from the capability approach’ (2009) 28 Studies in Philosophy and Education 415; K Mok and W Jeong ‘Revising Amartya Sen's capability approach to education for ethical development’ (2016) 17 Asia Pacific Education Review 501; MP Cockerill ‘Beyond education for economic productivity alone: the capabilities approach’ (2014) 66 International Journal of Educational Research 13.

109 E Unterhalter ‘Education’ in S Deneulin and L Shahani (eds) An Introduction to the Human Development and Capability Approach: Freedom and Agency (London: Earthscan/IDRC, 2009) p 207.

110 M Nussbaum Not for Profit: Why Democracy Needs the Humanities (Princeton: Princeton University Press, 2010).

111 S Deneulin ‘Constructing new policy narratives: the capability approach as normative language’ in GA Cornia and F Stewart (eds) Towards Human Development (Oxford: Oxford University Press, 2014).

112 Section 1(3) provides that in making decisions for children in these situations ‘the court shall have regard in particular to: (a) the ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in circumstances; (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under the Act in the proceedings in question’.

113 Re B (Change of Surname) [1996] 1 FLR 791 at 793, CA.

114 Law Commission Family Law: Review of Child Law: Guardianship and Custody (Report No 172) para [3.19].

115 JW Ely et al ‘Checklists to reduce diagnostic errors’ (2011) 86(3) Academic Medicine 307 at 307.

116 A Gawnde The Checklist Manifesto: How to Get Things Right (New York: Metropolitan Books, 2009).

117 R Karl ‘Briefings, checklists, geese, and surgical safety’ (2010) 17 Annuls of Surgical Ontology 8.

118 P Pronvost et al ‘An intervention to decrease catheter-related bloodstream infections in the ICU’ (2006) 355 New England Journal of Medicine 2725.

119 Ely et al, above n 115, at 307; M Sibbald et al ‘Checklists improve experts diagnostic decisions’ (2013) 43 Medical Education 301.

120 S Kalyuga et al ‘The expertise reversal effect’ (2003) 38 Educational Psychologist 23.

121 S Kalyuga ‘Expertise reversal effect and its implications for learner-tailored instruction’ (2007) 19 Educational Psychology Review 509.

122 See Gwande, above n 116.

123 See for example M Biggeri ‘Children's valued capabilities’ in Walker and Unterhalter, above n 99; M Dominguez et al ‘A well-being of their own: children's perspectives of well-being from the capabilities approach’ (2019) 26(1) Childhood 22; Biggeri et al, above n 95.

124 S Alkire et al Developing the Equality Measurement Framework: Selecting the Indicators (Equality and Human Rights Commission, Research report 31, 2009).

125 ECHR, above n 9, p 3.

126 Ipsos MORI Consulting for a Capability List: Research Study Conducted by Ipsos MORI for the Equalities Review (Ipsos MORI, 2007), available at https://webarchive.nationalarchives.gov.uk/20100702224210/ http://archive.cabinetoffice.gov.uk/equalitiesreview/upload/assets/ www.theequalitiesreview.org.uk/morireport.pdf.

127 Sen (2010), above n 6.

128 Ballet et al, above n 78, p 39.

129 Alkire et al, above n 124.

130 This required working inductively from core international human rights to determine a ‘set of underlying (or implicitly defined) states of being and doing … protected and promoted in international law’: ibid, p 100. The main sources for this work were the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. These were supplemented by other treaties.

131 T Burchardt and P Vizard ‘“Operationalizing” the capability approach as a basis for equality and human rights monitoring in twenty-first-century Britain’ (2011) 12(1) Journal of Human Development and Capabilities 91 at 102.

132 Ibid.

133 T Burchardt and P Vizard Developing an Equality Measurement Framework: A List of Substantive Freedoms for Adults and Children (Equality and Human Rights Commission, Research Report 18, 2009).

134 T Burchardt et al Specialist Consultation on the List of Central and Valuable Capabilities for Children (Equality and Human Rights Commission, Research Report 41, 2009) p 4. Thus, the list is informed by the Every Child Matters Framework; the Welsh Assembly's Seven Core Aims for Children and Young People; and the Scottish Government's Getting it Right for Every Child.

135 Burchardt et al, above n 134, p 4.

136 This included subject specialists from government units, non-profit organisations, non-governmental organisations and academics from England, Scotland and Wales: ibid.

137 Burchardt and Vizard, above n 131.

138 Burchardt et al, above n 134, pp 109–110.

139 Ballet et al, above n 78, pp 39–40. For a discussion of the sympathetic relationship between the UN Convention on the Rights of the Child and the Capabilities approach see Hart and Brando, above n 68.

140 I am grateful to Helen Stalford for raising this point.

141 Robeyns, I Wellbeing, Freedom, and Social Justice: The Capability Approach Re-examined (Open University, 2017) p 170CrossRefGoogle Scholar.

142 See for example Pogge, T ‘Can the capability approach be justified?’ (2002) 30(2) Philosophical Topics 167CrossRefGoogle Scholar; Jaggar, A ‘Challenging women's global inequalities: some priorities for western philosophers’ (2002) 30(2) Philosophical Topics 229CrossRefGoogle Scholar.

143 Robeyns, above n 141, p 194.

144 Sugden, R. ‘Welfare, resources, and capabilities: a review [inequality reexamined]’ (1993) 31(4) Journal of Economic Literature 1947 at 1953Google Scholar.

145 Rawls, J Law of Peoples (Cambridge MA: Harvard University Press, 1999) p 13Google Scholar.

146 See for example F Stewart ‘Groups and capabilities’ (2005) 6(2) Journal of Human Development 185.

147 See Dreze and Sen, above n 65, p 6.

148 Robeyns, above n 141, pp 184–185.

149 Ibid. See also Robeyns, above n 63.

150 Sen (2010), above n 6.

151 For example, J Munby ‘Unheard voices: the involvement of children and vulnerable people in the family justice system’ (2015) Family Law 895.

152 Daly, above n 1, ch 4.

153 Daly, above n 1.

154 See the review by Cave, E ‘Review of children, autonomy and the courts: beyond the right to be heard, by Aoife Daly’ (2018) 40(4) Human Rights Quarterly 1041CrossRefGoogle Scholar.

155 Biggeri et al, above n 95, at 65.

156 Rawls, above n 145.

157 Burchardt and Vizard, above n 131, at 96–97.

158 Ibid, at 97.

159 Daly, A ‘No weight for “due weight”? A children's autonomy principle in best interests proceedings’ (2018) 26 International journal of Children's Rights 61 at 85CrossRefGoogle Scholar (emphasis removed).

160 Burchardt and Vizard, above n 131, at 96.

161 Stalford and Hollingsworth, above n 10, p 33.

162 Rawls, above n 145; Sugden, above n 144.

163 See above n 18.