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Children's Rights Notes

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2: CHILDREN'S RIGHTS A. CHILDREN'S RIGHTS (i) GENERAL Fortin: Children's rights and the developing law ch 1 (theoretical perspectives) 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 o 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 o The slow development of children's cognitive process makes the majority of children unfit to take complete responsibility and be granted adult freedoms o Concerns have been raised that a failure to regulate childhood would lead to more exploitation of children, rather than less (Fox Harding) o 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: o EG. Franklin o Even quite young children are capable of competent thought and of making informed choices o Adults, like children, make mistakes and may be ignorant and lack education and experience o 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 o 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 adults who are acting in breach of their rights and may be too young to take steps to enforce rights o Response by MacCormick: children may have moral rights prior to any correlative duties vesting in anyone to fulfill them or indeed without it being clear who is obliged to fulfill the right o Moral right - a good of such importance that it would be wrong to deny it to or withhold it from any member of a given class What rights do children have?
 What interests are to be translated into moral rights and what moral rights are to be translated into legal rights?
 Many commentators accept moral rights are translated into legal rights when there is some recognition of importance by the rest of society and consequently the imposition of correlative legal duties on others regarding the fulfillment of those rights
 Criticism of interest theory  too broad and the interests are without clear demaracation (ie. which interests are to serve as the ground of rights?)
 Eekelaar's practical response was to classify children's interests according to three groups: basic (immediate physical, emotional and intellectual care and well-being), developmental (claims on the wider community to maximise their potential) and autonomy interests (freedom to choose his own lifestyle and to enter social relations according to his own inclinations); where an autonomy interest conflicts with an

interest in the other two categories, the latter interests should prevail
 Point: although many theorists accept that children can be rights-holders, there remains no clear test providing guidance over what rights they have or should have
 Nevertheless, the language or rhetoric of rights is a politically useful tool to ensure the achievement of certain goals for children and perhaps strict theoretical justifications for the existence of moral rights aren't as important as believing that children are rights-holders International human rights
 Practitioners appear to draw more support from the widely held view that children have human rights than from the work of moral philosophers Children's rights and the role of paternalism Children's autonomy and the role of paternalism
 Claims that children have a right to autonomy  the argument is that as human beings, children should like adults, be free to lead their own lives according to their own conception of a good or worthwhile life, provided this does not illegitimately restrict the liberty of others to do the same
 Few philosophers today consider that children have the competence for complete autonomy and some see paternalism as having an important role to play in restricting children's powers of self-determination
 Many theorists see little need to accord children choice rights before they gain the capacity to reach wise choices
 Such views provide a morally coherent justification for a paternalistic interpretation of children's rights, but fill others with dismay
 EG. Eekelaar considers it quite wrong to assert than an individual's interests can be determined/asserted by someone else Welfare versus rights - restraining paternalism?
 Paternalism seen by some as essential to the relationship between parent and child
 However, the prospect of unrestricted paternalism being applied to override children's choices leaves many writers with a sense of unease (ie. this may be exploted by those in a position of power over children)
 Eekelaar argues that the when courts are reaching decisions to conform with the welfare/best interests principle, this formula is sufficiently indeterminate and takes little account of the true views of the child; develops a sophisticated approach to promoting children's views = dynamic self determinism which is intended to bring a child to the threshold of adulthood with the maximum opportunities to form and pursue life-goals which reflect as closely as possible an autonomous choice
 According to Eekelaar, 'a person who surrenders to another the power to determine where his own welfare lies has in a real sense abdicated his personal autonomy'
 Some commentators suggest that under a welfare approach, a child's wishes can be overborne whereas under a rights approach they cannot Adolescents and paternalism
 Many adults would approve of adolescents having a degree of personal autonomy, by acknowledging their right to reach certain major decisions for themselves  however, there would likely be disagreement over which decisions they should have a right to determine
 Gillick decision: HoL accepted that adolescents have the right to decide a variety of legal maters before reaching legal maturity
 Likely to be reluctance to allow adolescents the freedom to make life-threatening mistakes (ii) THE STATUS OF CHILDREN Dwyer: moral status and human life - the case for children's superiority Argument: Dwyer's argument is that children actually occupy a position of increase moral status than adults; their traits of youthfulness elevate their moral status over adults; he argues we ascribe moral status according to triggers of moral intuition (sympathetic identification; rational extension of self-estimation and awe); he argues it is in fact possible to have degrees of moral standing and children come

out ahead on the criteria for attributing moral status; the only area children are behind adults is in cognitive functioning and the fact that they will develop this is important and this factor alone isn't enough to outweigh the other characteristics children have; children's interests should therefore trump adult interests because of this and children should be privileged Brennan and Noggle: the moral status of children - children's rights, parents' rights and family justice
 Argument: attempting to provide a philosophical foundation for thinking about the moral status of children; offering a rights based theory of the moral status of children that meets the constrains on the commonsense position and resolves any internal conflicts of it; a rights-based approach does a better job than either the best interests test or the clear and present danger standard at respecting the value children have as persons The commonsense understanding of children's moral status Three commonsense claims about the moral status of children
 Any acceptable theory of the moral status of children must be compatible with 3 claims:

1. That children deserve the same moral consideration as adults = the equal consideration thesis

2. Children can nevertheless be treated different from adults = unequal treatment thesis

3. Parents have limited authority to direct their upbringing = the limited parental rights thesis
 While each claim seems independently plausible, the set of them seems prima facie inconsistent which provides evidence of certain tensions within our commonsense thinking about children
 Philosophical challenge to develop a theory that embodies and makes sense of all three claims in a way that resolves the tension between them
 Equal consideration thesis  moral consideration to be equal; does not imply that children have the same duties/rights as adults as two people can receive the same equal moral consideration without having the same package of moral rights and duties o The basis for this is the fact that children are persons and therefore are entitled to the same moral consideration to which anyone is entitled merely in virtue of being a person
 The unequal treatment thesis  children, at least of certain ages, can be legitimately prevented from doing certain things it would be illegitimate to prevent adults from doing o Strong practical reasons in favour of this o Grown children would recognise they needed their actions restricted when they were young children and most would give a retroactive consent to having restrictions placed on them
 The limited parental rights thesis  parents can legitimately exercise limited but significant discretion in raising children o Parents have a responsibility to nurture and protect their child and the authority to exercise judgment in doing so and it seems natural to assign to parents this right
 These three thesis' capture the commonsense position but (1) seems to conflict with (2) and (3) Reconciling the claims Is the equal consideration thesis compatible with the unequal treatment thesis?
 (1) gives the same basic moral status to children as adults, which is an important source of rights (often called human rights)
 Whatever rights adults have simply in virtue of being persons, the same rights belong to children
 Does giving equal moral consideration in the form of recognising basic human rights of children preclude treating children differently from adults? (2)
 Although much of a person's moral status derives from their status as a person,

personhood is not the only source of moral status
 EG. Roles may confer moral status; promises; property etc.
 It appears then that granting equal moral consideration does not imply that each person has the same package of rights and duties
 Instead, to accord someone equal moral consideration is to respect the moral status the person has simply in virtue of being a person and it is to be willing to consider any other moral claims she might make due to other factors affecting moral status
 Equal moral consideration is compatible with some sorts of inequalities of treatment, but not others  it does not require equal treatment in every way and therefore (1) and (2) are compatible
 The reason for this is the distinction between basic rights and other rights which are constructed from basic moral rights + other factors
 The relative lack of maturity of children counts against their having certain roledependent rights, since they are not mature enough to play these roles and cannot have the rights attached to them (eg. being denied the right to drive, vote etc. bc they do not fulfill the roles bc they lack the relevant ability) Is the equal consideration thesis compatible with the limited parental rights thesis? (1) and (3)?
The nature of parental rights
 Argument is that (3) is best interpreted as a claim that parental rights are rights with thresholds  ie. a right that can be permissibly infringed when at least one of two conditions is met (a right may be overridden where it conflicts with a stronger right or if doing so will bring about a large enough benefit to others)
 Both of these conditions for overriding a right are often satisfied in interactions between parents and children where parental rights conflict with the children's rights and needs
 The argument is that parents do have rights but bc those rights have thresholds they can be infringed if necessary for preserving the rights of the child or for making sure the child's needs are met
 Viewing parental rights as rights with thresholds is part of the explanation of how parental rights can exist even though we grant equal moral consideration to children The basis for parental rights
 Development of Locke's claim that parental rights are based neither on parental ownership nor on the rational consent of children to be governed by parents
 Instead, parental power is that which parents have over their children, to govern them for the child's good
 Locke argues parents must govern children until they develop the use of reason and come to be able to govern themselves
 The difference in views  children's rights also impose limits on the rights of parents
 Argument is that parental rights are nothing like property rights but instead derive from the fact that children are often incapable of effectively exercising their rights/making rational decisions about their interests
 Parental rights are necessary to allow parents the freedom to effectively protect/nurture children = stewardship rights (a right someone has in virtue of being a steward as opposed to the owner of something)
 This explains why children's rights take priority over most other considerations whilst parents still have much freedom to raise their children, therefore reconciling (1) and (3)
 The role of parent as steward gives the parent a set of duties toward the child  the duty not to violate the rights of the child and the duty to prevent others from violating the rights of the child and the duty to promote the interests of the child
 The third duty is an imperfect duty (cf. perfect duties in the Kantian sense) in order to give parents leeway in deciding how to promote the interests of the child and in a large extent it is up to the parent to decide what fulfilling the duty will amount to
 The rights of the parent to make decisions for the child are only rights to exercise discretion in fulfilling the duty to promote the interests of the child  parental rights therefore only extend to deciding how to promote the interests of the child
 Summary of argument: by distinguishing basic rights to which all persons are entitled from constructed rights that depend on factors beside one's status as a person and by

thinking of parental rights as stewardship rights and thus as rights with thresholds, we can reconcile the three claims making up the commonsense position Rights, conflict and the moral nature of parenting
 Some argue conceptualising the parent-child relationships in terms of rights introduces an element of conflict between parents and children
 Some worry about the "dangers" of talking about the rights of children (eg. Schoeman argues that it is detrimental to relationships to speak in terms of rights bc this will emphasise the separateness of persons instead of the union of persons)
 Also argues that talk of rights introduces the prospect of state intervention
 Authors argue that these things are an advantage of rights  moving children into the public realm so they are not at the mercy of their parents and disagree that rights talk is somehow incompatible with deep, personal relationships
 Recognising rights is perfectly compatible with being in a relationship
 Favour strong and healthy relationships between parents and children but do not think this is incompatible with talking about children as rights-holders
 Instead, rights are a tool for telling whether a relationship is healthy or not
 The rights of a child are not prima facie rights  even if they must be overridden in a particular case, they do not vanish
 Secondly, the parent is uniquely placed to do this balancing bc they know the child and identifies with the child and can take an interest in making sure all of the children's rights are respected Public policy implications
 Conceiving of parental rights as stewardship rights limited by children's own rights has important/interesting implications for public policy
 Argument that the theory posed justified the sort of public policy that seems desirable
 Two principle rivals to the rights-based approach to public policy: o Best interest test  consequentialist standard that looks to the child's future for guidance; requires a maximisation of the child's future well-being
 Difficulties flow from this consequentialist nature as it requires judges to have a standard of well-being by which to assess children's interest and leaves what is in a child's interest open to interpretation
 Often judges will ask children what they would like to see happen, but the test does not require this and therefore does not guarantee recognition of children's rights
 The maximizing nature of the test makes intervention in the lives of families more likely
 This test is not compatible with a recognition of even limited parental rights o Clear and present danger standard  emphasises autonomy of family unit and seeks to insulate it from state interference
 Issue is that it justifies too little intervention
 Seems better to intervene earlier, while there is time to salvage the relationship between parent an child
 Public policy should include intervention when a child's rights are being violated, even if these violations do not constitute a clear and present danger
 Argument: a rights-based approach does a better job than either of these tests at respecting the value children have as persons Conclusion:
 Theory advocates respect for the fact that even quite young children are persons, and have identities, histories and personal attachments which are constitutive of humanity
 These should be enshrined in a vocabulary of rights and a rights-based approach is required which will facilitate the treatment of children as persons and accord them the moral status that other persons have Tobin: courts and the construction of children's rights - a new way of thinking

Argument: Tobin explores what is meant by a 'new way of judicial thinking' in which children are conceived of as independent subjects with rights and entitlements as opposed to mere objects in need of protection; Tobin argues the courts over time have constructed childhood in three different ways (pty, welfare and most recently rights); Tobin considers the way in which courts have engaged with the rights-based model and argues that the court's engagement with this model has fluctuated along a spectrum, arguing we are currently on the verge 'of a new epoch in which the construction of childhood by courts will increasingly be viewed through the prism of rights;' emphasis is also placed on the legal, institutional and social factors which influence the extent to which courts engage with this new way of thinking The features of a substantive rights based approach to the judicial construction of childhood
 Guggenheim (against children's rights) vs. Fortin (advocate of children's rights) = have a different understanding of the concept of children's rights
 Tobin's analysis of the rights based approach is located within the vision of children's rights under the CRC with four core principles: 1) Children have rights 2) Parents have primary responsibility for the care and upbringing of a child (*relp not defined by parental right of possession/control but by an obligation to provide guidance and assistance to a child to ensure the realisation of his/her rights, subject to the evolving capacities of the child 3) Ensure the best interests of the child are a primary consideration 4) The process for determining the best interests of the child  to be interpreted by reference to other CRC rights; in particular 12(1) and 12(2) which focus on the child's right to be heard and the requirement to adopt an evidence based approach The different areas in which a consideration of children's rights might be relevant for the court:
 Conceptualisation of the issues: o The argument of Tobin is that under a substantive rights based approach, any case which concerns children must conceptualise the issue in the case through a prism in which the rights of the child are identified as being central to the issue being determined by the court o EG. Hale in Williamson: 'my lord this is and has always been a case about children, their rights and the rights of their parents and teachers.'
 The procedures adopted for the resolution of the issues: o The argument is that a rights based model should influence the procedures adopted by the court which can influence all aspects of the proceedings o EG. Hale in Williamson: concern that there was an absence of a procedure to ensure children's views known to the court
 The meaning given to the content of the rights in question: o Courts must inform the content of the right by reference to the experiences of children
 The substantive reasoning adopted by courts to resolve legal issues arising in cases concerning children: o A more nuanced approach will be required in matters in which a child's rights/interests are a primary consideration as there will be competing rights in play o Where there is a dispute between children the court must give sensitive consideration to the competing interests of children and the balance to be drawn will depend on facts
 Begum: case demonstrates the need for courts to give careful consideration to the rights of all children in a dispute which may be of concern to them even if not directly involved in proceedings o A dispute concerning a child and parents:
 A substantive rights approach concedes that a child of insufficient maturity/understanding will remain dependent on parents but in certain cases where a child clearly expresses a view contrary to the wishes of their parents but that child lacks sufficient understanding and maturity

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