Capacity

'Evolving capacities' recognizes 'children as active agents in their own lives, entitled to be listened to, respected and granted increasing autonomy in the exercise of rights, while also being entitled to protection in accordance with their relative immaturity and youth.'

Lansdown, G.,The Evolving Capacities of the Child
UNICEF Innocenti Research Centre, 2005 at pp. ix

The evolving capacities of children need to be understood and examined through three conceptual frameworks:

  • Firstly, as a developmental concept, recognizing the extent to which children’s development, competence and emerging personal autonomy are promoted through the realization of the Convention rights. In this sense it imposes obligations on States parties to fulfil these rights.
  • Secondly, as a participatory or emancipatory concept emphasizing the rights of children to respect for their capacities and transferring rights from adults to the child in accordance with their level of competence. It imposes obligations on States parties to respect these rights.
  • Thirdly, as a protective concept, which acknowledges that because children’s capacities are still evolving, they have rights to protection on the part of both parents and the State from participation in or exposure to activities likely to cause them harm, although the levels of protection they require will diminish in accordance with their evolving capacities. It imposes obligations on States parties to protect these rights.

Lansdown, G.,The Evolving Capacities of the Child
UNICEF Innocenti Research Centre, 2005 at pp. x

Young people have capacity, competency and the right to make some decisions for themselves, the right to participate in decision-making processes affecting them, and the right to provide their own consent in many contexts, including in contradiction to what parents or guardians might want for their children.

Is There a Difference Between Capacity and Competency?

For the most part ‘capacity’ and ‘competency’ are interchangeable terms. For example, the Canada Evidence Act, RSC 1985, C-5 uses both competency/incompetency as well as capacity without defining them or identifying the difference between them. Further, an online dictionary review shows a lack of distinction whether checking Black’s, Merriam Webster, Cambridge English, the free Dictionary or Wikipedia. United Nations documents tend to use the language of ‘capacity’ when referring to an individual’s capabilities as we would understand them in a legal context; whereas, UN documents tend to reserve the use of ‘competency’ for the jurisdictional authority of the UN’s governing and policy bodies. For the purpose of this section of the Child Rights Toolkit, ‘capacity’ will be the preferred terminology and no distinction will be drawn between ‘capacity’ and ‘competency’.

It can be helpful to review and consult legislation, case law and literature in other fields of practice. In the national Professional Code of Conduct developed by the Federation of Canadian Law Societies, and those implemented by provincial governing bodies, the notion of a minor’s capacity is explicitly considered in combination with all “Clients of Diminished Capacity” and includes impairment “…because of minority, mental disability, or for some other reason…” (e.g. Codes of Conduct as published on the respective websites of the Law Societies of Alberta (2.02 (12)) and Upper Canada (3.2-9)).

Capacity and the CRC

Express references to ‘capacity’ in the Convention on the Rights of the Child (CRC) are found in Articles 5, 14 and 40(3)(a). However, the CRC does not require that a child have ‘capacity’ or that they reach a certain age before exercising rights. Articles 5 and 14 reference the child’s ‘evolving capacities’, which recognizes that as a child grows and matures, the child is able to progressively exercise his or her rights. The CRC also recognizes that children may lack capacity and consequently require special protection, such as at Article 40(3)(a) in the context of young children and minimum age for criminal responsibility.

Articles 9, 12, 26, 37, and 40 contemplate participation and representation of the young person in various processes and proceedings, for example by sharing views, providing informed consent or applying for benefits.

Article 21 stipulates that persons having the right to consent to an adoption, including a young person being considered for adoption, have a right to ‘informed consent’. ‘Informed consent’ places a burden on those seeking the adoption to have acquired informed consent from a young person who is being adopted. The language implies both participation and capacity on the part of the young person as informed consent can only be given by someone who has capacity; that is, an understanding of what they are consenting to. This is the only place in the CRC in which ‘participation’ is dependent on having capacity. However, a young person in a situation of adoption, or any other circumstance in which capacity or understanding is expected, can be assisted to reach the requisite degree of understanding in order to give informed consent.

Is ‘capacity’ a prerequisite to exercising CRC participation rights?

The CRC recognizes that the child’s capacities are evolving (e.g. Article 5) and with the exception of Article 21, the CRC does not require a young person to have capacity in order to participate and enjoy the rights set out in the CRC. Even Article 21 is not a requirement but rather a protection for all those participating in an adoption and ‘informed consent’ is a right in itself. This helps minimize barriers to children’s participation.

In Article 12 (and implicitly in Article 9(2)), a young person “who is capable of forming his or her own views” is given the right to express those views freely in all matters affecting them. This is framed as a young person being ‘capable’ of forming a view rather than having the ‘capacity’ to form a view. The threshold for participation is, therefore, low. Article 12 simply requires the formulation of a view, absent any understanding by the young person of how or why they formed the view , the basis of the view, or the consequences of voicing the view or acting on it. Article 12 goes on to state that due weight is to be given to the views of the child in accordance with the child’s age and maturity. This suggests that greater weight will be given to the child’s views as the child becomes older and more mature, implying a greater degree of understanding on the part of the child of the nature and consequences of the articulated view. (General Comment No. 12, at paras. 20-21)

The absence of a minimum threshold for ‘capacity’ minimizes barriers to young people’s participation. Historically, tests of capacity have limited opportunities for young people to participate in decisions made about them. The CRC is explicit that capacity is not to be a barrier to young people’s participation and that the formation of a view in and of itself, without any requirement to ‘have capacity’ is sufficient to permit participation by young people in matters affecting them.

Capacity to Do What?

As noted, the CRC recognizes a child’s evolving capacities. When an issue regarding a child’s capacity arises, it is important to ask, “the capacity to do what?”, as the answer determines the context and corresponding capacity required. Consideration of the full bundle of the child’s rights is required to ensure the developmental, participatory and protective elements of the child’s evolving capacities are respected.

A key question in determining capacity, is capacity to do what? Is it a question of capacity to:

  • instruct counsel
  • consent to/refuse medical treatment
  • enter a solicitor-client relationship
  • waive solicitor-client privilege
  • consent to/refuse release of records
  • testify/give evidence
  • to stand trial
  • consent to/refuse treatment for mental disorders
  • admit/refuse admission to hospital
  • register in school
  • determine the school in which to register
  • open a bank account
  • apply for a driver’s licence
  • enter into a contract
    • to buy a car
    • to buy a cell phone
    • to rent an apartment
  • consent to or refuse to consent to evaluation or assessment
  • make access arrangements with a non-residential parent
  • consent to/refuse testing
  • enter a foreign country as a refugee
  • travel as an unaccompanied minor
  • consent to sexual activity
  • consent to marry
  • to vote
  • consent to doctor assisted death

The currently accepted approach to capacity is that it is not a global condition but rather domain and/or decision-specific; hence the requirement to ask, “capacity to do what?” because there is and should not be a universal test for capacity.

Often for efficiency, an age-based standard is used as the capacity threshold such as for voting, consent to sexual activity, marriage, driving, or age of majority itself. However, it is impossible to discuss any individual’s capacity without defining the context within which that capacity is to be exercised as each context will demand varying degrees of capacity, if any.

A specific test of capacity depending on a particular context is familiar to the legal profession. For example, determining when a person has the capacity to make a will, stand trial, give evidence, or refuse or consent to medical treatment each has a different test for capacity. Assessing a young person’s capacity entails the same potential diversity and process. As with adults, if the issue being determined for a child involves a decision in which life hangs in the balance, the test for capacity to make that decision is likely to have a much higher threshold than the test of capacity to open a bank account or to choose what school to attend. A review of tests of capacity in various contexts invariably show that an element of understanding is required. (See Hensley paper in Resources below for an example of a specific test of capacity for a child to instruct counsel.)

Mature Minor Doctrine

The capacity of children to make decisions for themselves, even when contrary to their parents’ positions, is supported by the ‘mature minor doctrine’ which frequently arises in medical decision-making: when a minor is “capable of understanding what is proposed and of expressing his or her own wishes” with respect to treatment then, parental rights yield “to the children’s right to make his or her own decisions” (Gillick v West Norfolk and Wisbech Area Health Authority, [1985] (1985) 3 All ER 403).

‘Emancipation’, as a legal or global status for youth does not exist in Canada outside Quebec. However, practically, young people can acquire authority over some matters before reaching the age of majority on a domain-by-domain basis. For example, in Alberta, young people who demonstrate they are self-supporting can apply to their school administration for independent student status and be permitted to make their own decisions about courses and involvement in extra-curricular activities, including non-release of records to parents or guardians. At common law, young people can contract for necessities. Young people can apply for their own passports at 16 but generally require consent of their parents to acquire a learner’s permit until they are over the age of majority. Matters governing age-based permissions generally fall within provincial jurisdiction.

International Law

CRC Articles in which the word ‘capacity’ is used

Article 5 – Respect parents’ responsibilities and rights to provide in a manner consistent with the evolving capacities of the child appropriate direction and guidance in the exercise by the child of the child’s rights

Article 14 – Respect the Child’s right to freedom of thought, conscience and religion, and respect parents’ and legal guardians’ rights and duties to provide direction to the child in the exercise of the child’s rights in a manner consistent with child’s evolving capacities of the child

Article 40(3)(a) – States Parties shall establish a minimum age for criminal responsibility and a presumption that children younger than that age do not have the capacity to infringe the penal law

Articles 5 and 14 do not require or expect capacity of the young person, rather they recognize that those responsible for caring for young people have an obligation to provide for young people in accordance with their needs, and consistent with their growth, development and maturation processes. This concept is reflected in the seminal decision of Gillick v West Norfolk and Wisbech Area Health Authority, [1986] AC 112 p 185:

The principle is that parental right or power of control of the person and property of his child exists primarily to enable the parent to discharge his duty of maintenance, protection, and education until he reaches such an age as to be able to look after himself and make his own decisions.

The reference to capacity in Article 40(3)(a) is intended as a protection for young persons and proposes an age-based standard for determining capacity rather than any analysis of competency, cognition or reasoning.

CRC Articles that support child participation and where capacity may be questioned

Article 9 – the child shall in proceedings where the child may be separated from parents in the child’s best interests be given an opportunity to participate and make their views known

Article 12 – the child who is capable of forming his or her own views has a right to express them freely in all matters affecting the child, with the views being given due weight in accordance with the age and maturity of the child, and in particular shall be given an opportunity to be heard in judicial and administrative proceedings either directly, or through a representative or appropriate body

Article 21 – where it is in the best interests of a child to be adopted, it will not be done unless a requirement that the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary is fulfilled

Article 26 – the child has a right to social security, and the benefits should be granted taking into account the resources and circumstances of the child and persons responsible for the maintenance of the child, as well as any other consideration relevant to an application made by or on behalf of the child

Article 37(d) - Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action

Article 40(2)(b)(ii)(iii)(vi) – where a child is in conflict with the law the child has at least the following guarantees:

  • To have legal or other appropriate assistance to prepare and present his or her defence
  • To have the matter determined in a fair hearing according to law, in the presence of legal or other appropriate assistance, and with parents/guardians unless not in the child’s best interests taking into account his or her age or situation
  • To have the free assistance of an interpreter if the child cannot understand or speak the language used

Interpretive Sources

Canadian Law

Federal Law

  • Canada Evidence Act, RSC 1985, c C-5, S 16, ss (4) A person referred to in subs. (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify. S 16.1, ss. (5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.

Provincial/Territorial Law

  • Adult Guardianship and Trusteeship Act, SA 2008, c. A-4.2, S 1(d) capacity means, in respect of the making of a decision about a matter, the ability to understand the information that is relevant to the decision and to appreciate the reasonably foreseeable consequences of (i) a decision, and (ii) a failure to make a decision.
  • Professional Codes of Conduct for Lawyers set out the obligations of counsel to clients generally and to clients of ‘diminished capacity’.

Case Law

  • Gillick v West Norfolk and Wisbech Area Health Authority, [1985] (1985) 3 All ER 402; [1986] AC 112 Parental right or power or control of the child and the child’s property exists primarily to enable the parent to discharge the duty of maintenance, protection, and education until the child is able to look after himself and make his own decisions. This case provides a foundation which has been accepted in Canada for the proposition that when a minor is “capable of understanding what is proposed and of expressing his or her own wishes” with respect to treatment then, parental rights yield “to the children’s right to make his or her own decisions.”
  • AC v Manitoba (Director of Child and Family Services), 2009 SCC 30 - The Court focuses on the more serious consent to medical treatment cases on best interests of the child as the determining factor. Specifically, the Court was asked to determine whether the Director of Child and Family Services was authorized to order unwanted medical treatment for an adolescent under Manitoba’s Child and Family Services Act? The Court found that ‘best interests’ under Manitoba’s child welfare legislation operates as a sliding scale of scrutiny, with the child's views becoming increasingly determinative depending on his or her maturity.
  • Pyett v Lampman (1922) 53 OLR 149 (see further at http://www.youthlaw.ca, search: “Can a youth enter into a contract?”) Young people can contract for necessities.
  • J.S.C. v. Wren, 1986 ABCA 249 – the case involved a 16 year old girl who became pregnant, wanted an abortion and provided the doctor with her informed consent; her parents who did not want her to have an abortion, sued the doctor and the 16 year old girl intervened; the Court found, “she did have sufficient intelligence and understanding to make up her own mind and did so. At her age and level of understanding, the law is that she is to be permitted to do so” (para. 16).
  • Puszczak v Puszczak, 2005 ABCA 426 - Care must be taken when reading this case, not to rely on the test of a child’s capacity to instruct counsel in this case as the Court was mistaken in its reference to a Commentary in the Alberta Code of Professional Conduct based on referencing learned authors who had misinterpreted the Code provisions.
  • Starson v. Swayze, [2003] 1 SCR 722 interpreted capacity of an adult in relation to the Ontario Health Care Consent Act and said that “able to understand the information relevant to making a decision” and “able to appreciate the reasonably foreseeable consequences of a decision” emphasized that “In this case, the only issue before the Board was whether Professor Starson was capable of making a decision on the suggested medical treatment. The wisdom of his decision has no bearing on this determination”. The Court further set out that in respecting the right of a patient to make such a personal decision regarding treatment, a reviewing court must accept that while choices may seem ‘foolish’, if the patient has capacity, the choice should be honoured. A similar approach could be used for young people and was used by Justice Binnie in dissent in the AC case.

Special Considerations

  • Do not set a higher threshold capacity test than would be expected of an adult in similar circumstances
  • Capacity is not required to take a young person’s views into account or to advocate for those views. They must merely be capable of forming a view
  • An example of a potential customized test of capacity to instruct counsel for a young person (low threshold) is:
    1. The young person understands or is capable of understanding that the lawyer takes direction from the minor – most young people understand when their lawyer tells them “you’re my boss”
    2. The young person understands or is capable of understanding one or more consequences of disclosure of information the minor has shared with the lawyer - most young people are clear that some of their information can be shared with some people This indicates that they understand there can be consequences to the disclosure of information provided to their lawyer and that they want at least some of their information to remain confidential and subject to solicitor-client privilege, the hallmark of a solicitor-client relationship
    3. The young person is able to convey his or her understanding to the lawyer – counsel has a responsibility to build rapport, create an atmosphere and provide tools to help the young person communicate with their lawyer: it is not merely the child’s responsibility
  • Counsel, not the court, must in the first instance determine the young person’s capacity - counsel must make that determination and be in a position to support the assessment for the situation

Practice Essentials

  • When the issue of a child’s capacity arises, ask “the capacity to do what?” The answer determines the context and corresponding capacity required
  • Consider the full bundle of child rights to ensure the developmental, participatory and protective elements of the child’s evolving capacities are respected
  • Do not substitute your own opinion for that of the child’s, based on your, counsel’s or any other person’s determination of the correctness of the young person’s views or opinions
  • Disagreeing with or holding a different opinion than that of a young person is not sufficient to discount that young person’s views and opinions
  • Determining a young person’s capacity is both process and substance: a test of capacity; and determining whether the young person’s response meets the test
  • The young person must have some understanding but what and how much is determined by the context of the decision or act to be undertaken
  • The quality or nature of a young person’s position or decision is not determinative, rather it is their responses to a low threshold test of capacity developed for that situation that must be assessed
  • There is no expectation that your client come to you with an understanding already in place and it is not required that a young person demonstrate capacity within the first minutes of interaction
  • Part of your responsibility as counsel for a child is to bring a client to a degree of knowledge and understanding so that the client can provide the lawyer with instructions on the matter at hand
  • Counsel must not substitute their opinion for their client’s - this does not mean that counsel blindly accepts the views and decisions of their young clients when they do not agree with the direction the young person seems to be heading. As with any client, counsel has an obligation to give sound advice, to indicate the likelihood of the young person’s desires to come to fruition in the matter, to present other possible options, solutions and other lines of thought and/or what might be another best alternative. In other words, as with other clients, legal counsel must do their job of providing their child or youth client with the benefit of their legal advice.

Resources