Children’s Developmental (Im)maturity: Aligning Conflicting Decisional Capacity Assessment Approaches in Australia

Dominique Moritz ()
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Dominique Moritz: School of Law and Society, University of the Sunshine Coast, 90 Sippy Downs Drive, Sippy Downs, QLD 4556, Australia

Laws, 2023, vol. 12, issue 1, 1-20

Abstract: Children’s decision-making is complex. There are many factors that contribute to children’s decisional capacity including cognitive reasoning, developmental maturity, upbringing and circumstances. For healthcare decisions, Australian law acknowledges children’s autonomy, and permits mature children to consent to beneficial healthcare. Yet, it also protects them from making life-changing decisions that could contravene their best interests. The criminal law approaches to children’s decision-making in Australia’s jurisdictions involves holding older children fully responsible for their decision-making, regardless of circumstances or maturity. The two approaches conflict because health law offers a protective mechanism for children yet criminal law imposes a punitive approach to children’s decision-making. This article considers whether the dichotomous approaches for children’s capacity assessments in Australian law can be reconciled.

Keywords: children; decision-making; capacity; criminal responsibility; health law; criminal law (search for similar items in EconPapers)
JEL-codes: D78 E61 E62 F13 F42 F68 K0 K1 K2 K3 K4 (search for similar items in EconPapers)
Date: 2023
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