The Complex Notion of the Capacity of a Child: Exploring the Term Capacity to Support the Meaningful Participation of Children in Family Law Proceedings

Round 1

Reviewer 1 Report

Thank you for inviting me to review this paper. I offer the following feedback to the authors and hope that they will continue to develop their work to realise its publication potential.

Written expression needs work

Section 2

• outlines method but does not discuss methodology
• reference to 'rights-based' approaches on page 3 (line 125) - further explanation needed + important to differentiate rights-based and protectionist approaches (& associated debates).  Later, for example, the sentence "... is in these children’s best interests, and directly aligned with their rights ..." (page 6, lines 272-273), blurs these together - i.e. because talk of 'best interests' aligns with protectionist focus, not rights-based.

Section 4

• Discussion regarding ‘capacity to contract', etc - relevance to children in context of family law is not clear. For example, page 4 (lines 180-188), the expectation that children's views be considered by the Court is quite different to children's capacity to make decisions in this context.  Relatedly, there are a number of places in which the authors make reference to concepts or approaches that seem to have been taken from adult-focussed literature - for example, the statement that a "‘capable’ child must possess a stable set of core values" (page 6 / 297).

Section 5

• Developmental psych is one of a range of approaches to understanding child development however no rationale is provided for its use here.  [NB: developmental psych is is a behavioural science, not a social science, as stated on page 5 / 210]. The authors also draw upon a range of disciplinary contributions throughout the remainder of the paper - which doesn't seem consistent with the stated focus on dev psych.
• ‘capable’ child must possess a 297 stable set of core values

Sections 6 - 10

• Section 8.1 discusses 'cognitive elements' but fails to consider how these might apply - and how 'capacity' might be conceptualised in relation - to children with diverse abilities including in the areas of language and communication. Relatedly, how might "basic understanding, comprehension and intelligence level" (lines 376-378) be defined? Is there a certain threshold that can be named and applied?
• Bronfenbrenner's ecological systems theory (discussed on page 9 - section 9) specifically identifies the significance of broader cultural values, laws and customs (chronosystem & macrosystem), however, these are not discussed here, nor included in the authors' model (Figure 1). Consideration of societal and cultural issues is generally lacking throughout the paper.  
• Given the highly contested nature of 'family systems theory' (page 10), it is not clear why the authors have chosen to use this here, especially given the accessibility of more contemporary and relevant perspectives. 
• Assumptions about, & theories focusing on, attachment (also page 10) are similarly contested and critiqued for their ethnocentrism and limited relevance in diverse contexts. 
• 'Communication Style: Delivery of Voice, Views, and Preferences' (s10.2 - page 11)  seems to cover similar content to that in section 7 (page 8)

 

Author Response

Reviewer 1: Responses

Please see each response to the reviewer under each comment.

 

Thank you for inviting me to review this paper. I offer the following feedback to the authors and hope that they will continue to develop their work to realise its publication potential. Written expression needs work

Section 2

outlines method but does not discuss methodology

reference to 'rights-based' approaches on page 3 (line 125) - further explanation needed + important to differentiate rights-based and protectionist approaches (& associated debates).  Later, for example, the sentence "... is in these children’s best interests, and directly aligned with their rights ..." (page 6, lines 272-273), blurs these together - i.e. because talk of 'best interests' aligns with protectionist focus, not rights-based.

• The reference to best interests aligned with the rights based was since edited as it understandably blurs the lines between rights-based and protectionist approaches (as this reviewer mentions)
• More information was provided regarding the rights-based approach in line 125 in order to expand upon the methodology

Section 4

Discussion regarding ‘capacity to contract', etc - relevance to children in context of family law is not clear. For example, page 4 (lines 180-188), the expectation that children's views be considered by the Court is quite different to children's capacity to make decisions in this context.  Relatedly, there are a number of places in which the authors make reference to concepts or approaches that seem to have been taken from adult-focussed literature - for example, the statement that a "‘capable’ child must possess a stable set of core values" (page 6 / 297).

• This is a relevant comment; the authors have since included more distinction between decisional capacity and participatory capacity.
• For the second comment, the authors have since added an introductory clarification regarding the fact that there are not many child-conducive studies regarding areas of capacity and therefore, some of these concepts must stem from adult-focused literature, hence the emphasis of the article that more child-friendly considerations must be explored.

Section 5

Developmental psych is one of a range of approaches to understanding child development however no rationale is provided for its use here.  [NB: developmental psych is is a behavioural science, not a social science, as stated on page 5 / 210]. The authors also draw upon a range of disciplinary contributions throughout the remainder of the paper - which doesn't seem consistent with the stated focus on dev psych.

• The authors have since rationalized the inclusion of a developmental psychology approach as when considering capacity there is essentially no clear discipline the explanation, definition, or practice of assessing capacity comes from. Hence the need to explore its meaning from various disciplines. As mentioned, this has since been addressed.
• the intention was to include all viewpoints (or many) in order to draw upon all disciplines to come up with a well-rounded and inclusive approach to the consideration of children’s capacities.
• The comment about developmental psychology being considered a behavioural science is correct, and has since been changed where necessary within the article.

Sections 6 - 10

Section 8.1 discusses 'cognitive elements' but fails to consider how these might apply - and how 'capacity' might be conceptualised in relation - to children with diverse abilities including in the areas of language and communication. Relatedly, how might "basic understanding, comprehension and intelligence level" (lines 376-378) be defined? Is there a certain threshold that can be named and applied?

• As broadly defined by the authors, a basic understanding in this case refers to a child who completely understands what is happening around them. There has since been more detail added to this section to expand upon what a basic understanding level entail. The authors have added a new reference in order to help identify certain thresholds as recommended by the reviewer.
• more information about atypical development was included and discussed.

Bronfenbrenner's ecological systems theory (discussed on page 9 - section 9) specifically identifies the significance of broader cultural values, laws and customs (chronosystem & macrosystem), however, these are not discussed here, nor included in the authors' model (Figure 1). Consideration of societal and cultural issues is generally lacking throughout the paper.

• Though the authors agree with the limited inclusion of societal and cultural issues, the focus on this article was to be capacity and the developmental aspects. Essentially, the societal and cultural considerations of children’s capacity could likely be its own article. Therefore, they were not detailed throughout this article. However, since the authors have made that clear so readers do not wonder why there is little consideration of such important elements.
• The authors mention that Bronfenbrenner is a good system to consider and that it is similar to the broader view of a child’s environment in Figure 1. It is essentially just to highlight the importance of considering a child’s environment in relation to their capacity and how their environment is directly related to their social connections. This has since been more clearly outlined by the authors.

Given the highly contested nature of 'family systems theory' (page 10), it is not clear why the authors have chosen to use this here, especially given the accessibility of more contemporary and relevant perspectives. 

• This theory was only briefly included to discuss the importance of the layers within families. Since, the authors have found a different more contemporary perspective to describe these relationships and their importance.
• this theory has been removed in terms of specifically identifying or including it, rather more of the importance of concepts have been included.

Assumptions about, & theories focusing on, attachment (also page 10) are similarly contested and critiqued for their ethnocentrism and limited relevance in diverse contexts. 

• The authors aim to mention they are discussing attachment within many families and that families can be diverse including (foster parents, guardians etc.)
• the authors recognize the idea of attachment and the importance in terms of relationships between parents and children- and have since cleaned up the language to make this clearer. Rather than emphasis assumptions or theories, the notion of attachment in the purpose of this paper was specified.
• No specific theories are included at this point, just more of the idea of attachment.

'Communication Style: Delivery of Voice, Views, and Preferences' (s10.2 - page 11) seems to cover similar content to that in section 7 (page 8)

• this section was included to emphasize the importance of children’s rights, and their right to have ample time and selections of methodology in regards to how they deliver their voice, views and preferences. Whereas section 7 aims to explore the physical ability to voice and communicate in terms of language, terminology etc.
• more clarity has since been added to make that more clear, including Lundy’s 2007 model of participation for children to rightfully have their voices heard.

 

Reviewer 2 Report

This paper is compelling as it focussed on an area which has received very little research attention. The argument of the authors is well conceived however the structure of the writing needs attention to ensure easy readership.

Many paragraphs do not have a clear opening sentence. It is often the second sentence in the paragraph where the detail is found. Paragraphs are not well concluded without a sentence drawing ideas together. The lack of clarity with the structure of paragraphs detracts from the emphasis that the authors are trying to make.

Figure 1 was mentioned on page 4 but it was not until p7 that the reader got to see the diagram. Consideration need to be given as to whether to introduce the diagram earlier or to leave referring to it till later in the paper.

The conceptualisation is to be commended. The holistic focus to create the model is to be commended to support children.

I have made some notes on the paper where I think the paragraph structure would benefit from editing.

Comments for author File: Comments.pdf

Author Response

Reviewer 2

Please see all addressed edits from editor comments under each comment:

This paper is compelling as it focussed on an area which has received very little research attention. The argument of the authors is well conceived however the structure of the writing needs attention to ensure easy readership.

• A deep read through of the paper was completed since suggested and the authors believe the article will be easier for readers to follow at this point.

Many paragraphs do not have a clear opening sentence. It is often the second sentence in the paragraph where the detail is found. Paragraphs are not well concluded without a sentence drawing ideas together. The lack of clarity with the structure of paragraphs detracts from the emphasis that the authors are trying to make.

• The authors have since rearranged various paragraphs and introductory sentences throughout the manuscript. Additionally, better attention has since been paid to include relevant and stronger conclusions to ‘draw ideas together’. The authors agreed this structure allows for more attention to be paid to the content.

Figure 1 was mentioned on page 4 but it was not until p7 that the reader got to see the diagram. Consideration need to be given as to whether to introduce the diagram earlier or to leave referring to it till later in the paper.

• The authors agreed to refer to the figure later in the paper. As to introduce the concept of capacity first and then introducing the model later.

The conceptualisation is to be commended. The holistic focus to create the model is to be commended to support children.

I have made some notes on the paper where I think the paragraph structure would benefit from editing.

• The authors also looked at the hand written, scanned corrections. Essentially, all the edits that were hand written were since corrected in the new copy of the manuscript.

Round 2

Reviewer 1 Report

Thank you for responding to my earlier comments. Your modifications have nominally addressed some, but not all, of the issues raised. Remaining areas of concern are detailed below:  

Section 2 -

Partially addressed. You have indicated that more information has been provided regarding the rights-based approach (at line 125, p. 3), however, the only thing changed here is the addition of an in-text citation.

Section 4 -

Partially addressed. You have indicated in your response that "more distinction between decisional capacity and participatory capacity" has been included. This seems to amount to the addition of the sentence at line 187 (p. 4) - "Though there is a difference between participatory capacity and decisional capacity, the emphasis on the emphasis on age and developmental stage remains considerably stagnant". This merely asserts difference without providing any explanation nor recognition of its significance. 

Section 6 -

There is not, in fact, "limited literature specifically outlining the elements involved in assessing or understanding children’s capacity" (line 286, p. 6). Much has been written; there exists a large body of literature, extending over a number of years. Just a quick glance of Daly's (2020) article and own reference list (cited in this paper) confirms this. See also publications from 25+ years ago such as Mlyniec, W. (1996). A judge's ethical dilemma: Assessing a child's capacity to choose. Fordham Law Review, 64(4), 1873-1915.   

Section 9 -

The justification provided for the "limited inclusion of societal and cultural issues" - i.e. that this would require "its own article" - is disappointing. The point is that social/cultural context shapes "capacity and the developmental aspects" (as suggested by the example provided at line 438 on p. 10).

Author Response

Thank you for responding to my earlier comments. Your modifications have nominally addressed some, but not all, of the issues raised. Remaining areas of concern are detailed below:  

• Thank you for taking the time to read through the manuscript and the changes made in the first round of reviews, and suggesting the remaining areas of concern. The authors believe that for review round 2, we have now adequately addressed the concerns. Please let us know if there are any more specific changes we should make for consideration of publication.

Section 2 -

Partially addressed. You have indicated that more information has been provided regarding the rights-based approach (at line 125, p. 3), however, the only thing changed here is the addition of an in-text citation.

• The authors agree, and since, more information has been added regarding specifications of a rights-based approach.
• More specifically that a rights-based approach aims to centre the UNCRC within the research’s literary inclusions, as well as throughout the structure of the research.
• The authors did not want to include too much information regarding a rights-based approach as though it frames the approach of finding relevant literature, this article is more about the capacity of children.

Section 4 -

Partially addressed. You have indicated in your response that "more distinction between decisional capacity and participatory capacity" has been included. This seems to amount to the addition of the sentence at line 187 (p. 4) - "Though there is a difference between participatory capacity and decisional capacity, the emphasis on the emphasis on age and developmental stage remains considerably stagnant". This merely asserts difference without providing any explanation nor recognition of its significance. 

• The authors have included a sentence about distinguishing the difference between decisional and participatory capacity in line 187. Since, we have added a few more lines distinguishing the difference by including more specific definitions. Again the emphasis here was intended to be the definition of capacity first. Before even deciding if this refers to participatory capacity or decisional capacity.
• This has since been more clearly outlined in the paper. Both participatory and decisional capacity has been more clearly defined, a new reference has been added specific to the participatory definition.

Section 6 -

There is not, in fact, "limited literature specifically outlining the elements involved in assessing or understanding children’s capacity" (line 286, p. 6). Much has been written; there exists a large body of literature, extending over a number of years. Just a quick glance of Daly's (2020) article and own reference list (cited in this paper) confirms this. See also publications from 25+ years ago such as Mlyniec, W. (1996). A judge's ethical dilemma: Assessing a child's capacity to choose. Fordham Law Review, 64(4), 1873-1915.   

• The authors agree, and have since re-worded/ re-structured this part. There is more and more research emerging related to children’s capacity in a general sense. This has since been clarified as there is not much literature relating to the elements that embody a child’s unique capacity level. This is the intention of this paper, and thus this has been reworded.
• Further specific examples of Daly’s (2020) work have been included, as well as mentioning past literature (Mlyniec, 1996) to show its abundance and development of literature over the years. This reference has since been added to the reference list as well.

Section 9 -

The justification provided for the "limited inclusion of societal and cultural issues" - i.e. that this would require "its own article" - is disappointing. The point is that social/cultural context shapes "capacity and the developmental aspects" (as suggested by the example provided at line 438 on p. 10).

• The intention was not to limit its importance but rather highlight, this is such an important consideration that indeed it could be its own article.
• Since, the authors have included a sentence regarding the importance of cultural issues and consideration regarding a child’s capacity, and how those are intertwined within Bronfenbrenner’s theory of systems. (line 477)
• However, the authors agree that social/cultural context shapes capacity and its developmental aspects. This has been highlighted since.
• The authors agree with this comment, and we believe we have since addressed this in a more meaningful manner.
• Since more detail has been added into section 10 as well, discussing individual values and how these are likely to be related to and embedded within family cultural norms and practices.

 

Reviewer 2 Report

The revisions have added clarity to aspects of the paper

Author Response

The revisions have added clarity to aspects of the paper:

• The authors want to ensure this was the only comment made by reviewer 2, and we are hopeful it means all original comments/concerns raised by reviewer 2 have since been satisfied and clarified
• Thank you for this response, and thank you for your comments regarding the manuscript, we believe the comments have improved the paper.