Children's Rights Notes

Argument: there is a disjunction between theory and practice with respect to children’s rights; the ideas of theorists can be of more practical assistance if translated into a set of legal principles which provide clear guidance over the extent to which children’s rights can be fulfilled; theories shouldn’t be dismissed as having little practical impact as they may provide a sound intellectual basis for preferring one course of action over another risk that children’s challenges will be dealt with on an ad hoc basis and in a confused and inconsistent manner if a clearer understanding of rights theory is not advanced

Introduction:

• Government and judiciary need to utilize the rights-based approach to children more wholeheartedly

• There is a greatly increased level of rights consciousness and ratification into domestic law of various international conventions have played their part in this

• Issues remain as to how to identify children’s rights, how to balance one set of rights against another in the event of conflict and how to mediate between children’s and adult’s rights

Rights awareness and rights skepticism

Children’s liberation

• The early American children’s liberationists probably did the concept of children’s rights a disservice by conveying a misleading impression that it is almost wholly concerned with giving children adult freedoms radical view which attracted publicity, causing the movement to be treated with scepticism

• Obvious dangers in granting adult freedoms to children bc of the slow rate of their physical and mental development as well as the danger in interfering with the relationship between parents and children, including potential damage to the family unit

• The slow development of children’s cognitive process makes the majority of children unfit to take complete responsibility and be granted adult freedoms

• Concerns have been raised that a failure to regulate childhood would lead to more exploitation of children, rather than less (Fox Harding)

• Another concern is the need to protect children from being forced into adulthood before they are sufficiently mature ie. children have a right to be children and not adults

• More recent proponents of the children’s liberation school:

• EG. Franklin

• Even quite young children are capable of competent thought and of making informed choices

• Adults, like children, make mistakes and may be ignorant and lack education and experience

• Argument that until quite young children are trusted with DM they are denied the opportunity of gaining experience in doing so and are prevented from developing DM skills

Children’s rights and the parental role

• Constant theme of those questioning the notion of children being rights holders concerns their relationship with their parents

• However, doubts often rooted in the assumption that the concept of children’s rights revolves solely around children’s autonomy

• This assumption is false children have a range of rights and many such as the right to care and protection, have little to do with making decisions

• Difficulty in making a successful transition to adulthood unless given opportunities fo practising DM skills and given a dry run at adulthood

• However, a recurring concern is that promoting the rights of children, law and policy will undermine the status and authority of parents

• The prospect of government interference with the parental role has traditionally provoked strong hostility with concerns that a rights based approach would involve a closer monitoring of the way parents bring up their children, with the consequent undermining of their authority

• Some degree of family privacy is desirable but a hands-off presumption will endanger the concept of children’s rights by fostering the view that parental behaviour towards children should be outside of the law

The dangers of rights talk

• The view that rights claims can protect the minority of children who need protection against their parents seems irrefutable

• Nevertheless, rights talk has a variety of opponents

• EG. Wellman urges greater restraint over employing the language of rights asserting the existence of unreal moral rights discredits the genuine ones and produces public scepticisim over the existence of such a concept

• Freeman: references to children’s rights turn out on inspection to be aspirations for the accomplishment of social/moral goals

• Some commentators even think rights themselves are a destructive concept (ie. makes society hollow with individuals asserting their rights against each other)

• Response: the language of rights should not be used loosely and many authors conclude that it is better to be a rights-holder than to depend on the kindness and favors of others

Do children have any rights and if so which ones?

Children as rights-holders

• Debate about whether children can justifiably be described as rights-holders at all

• The premise central to rights theories is that moral rights do exist

• Will theory: view that a person cannot be a rights-holder unless able to exercise a choice over the exercise of that right (choice/will theory) the capacity for choice is so important that it alone is capable of grounding all rights; since the existence of a right is dependent on the right-holders interest in choosing and since the majority of children lack the competence to make choices, proponents argue children cannot accurately be described as having rights

• Unattractive logic to the will theory as it negates the intuitive view that children must have rights bc it would be wrong to deny such a proposition

• Interest theory: a person has a right where his interests are protected in certain ways by the imposition of legal or moral normative constrains on the acts and activities of other people with respect to the object of one’s interests

• Difficulties with enforcement children often dependent on the...