Question of whether children can have rights?

• Might seem retrograde and counterintuitive in light of the CRC and “existence” of international children’s rights

  • HOWEVER: Distinction between children having moral (theoretical) rights, rights in the sense of international human rights, and legal rights within a particular system — possible to have one without the other

• Question becomes: Is there a sound theory for children having children’s rights and/or human rights? (ie. theorising what has already happened in practice)

  • Note Tobin comments regarding the dangers for under-theorising

Overarching questions:

• What does it mean to have a “right”?

  • Whether rights are based on will theory – which conceives of a right as the ability to hold another to their duty — or interest theory – which conceives of a right as an interest which is sufficiently important to place another under a duty to respect it

• How do we construct “childhood”? (ie. as a time of vulnerability and inability to act autonomously)

*Fortin

2009

Children’s rights and the developing law: Theoretical perspectives

(1) Do children have any rights and, if so, which ones?

• Main doubt of children as rights-holders stems from disagreement over nature of rights themselves:

  • Choice or will theory: person cannot be described as rights-holder unless able to exercise choice over exercise of that right — since existence of right is dependent on right-holder’s interest in choosing, and majority of children lack competence to make choices, children cannot be described as having rights

  • Interest theory: person has a right where interests as protected in certain ways by imposing (legal or moral) normative constraints on acts and activities of others with respect to object of one’s interests — children, like adults, have interests which require protecting in such a way — accommodates view that children are no less precious because of lack of adult capacities

    • MacCormick: Moral right as a good of such importance it would be wrong to deny or withhold it from any member of a given class”

• Argument: While acknowledging that agreement over universally acceptable theory of rights (for dependent children) always elusive, prefer interest theory — provides scheme of thought which promotes compelling and flexible assessment of the concept of children’s rights

  • However: Provides little guidance over defining what interest may be translated into rights

(2) What rights to children have?

• While many theorists currently accept that children can be (or are) rights-holders, remains no clear test providing guidance of what rights they have or should have:

• Eekelaar: Types of children’s interests that might deserve recognition and protection:

  • (i) Basic — immediate physical, emotional and intellectual care and well-being

  • (ii) Development — claims in wider community to maximise potential

  • (iii) Autonomy — freedom to choose own lifestyle and enter social relations according to own inclinations

  • In event of clash, basic and development should prevail over autonomy

• Bevan:

  • (i) Protective — arise from innate dependence and vulnerability, and need for nurture, love and care

  • (ii) Self-Assertive — includes claims to adult human rights and “decision-making rights”

  • Important: Reflects fundamental conflict underlying child law — conflict between (a) need to fulfil children’s rights to protection and (b) to promote capacity for self-determination

• Argument: Perhaps strict theoretical justification for existence of moral rights do not matter so much as believing that children have rights

  • Pragmatically, language of rights political useful to ensure achievement of certain goals for children

(3) Welfare versus Rights — Restraining paternalism

• Courts under increasing pressure to give greater weight to concept of children’s rights (often solely in terms of right to reach choices of their own)

  • Inter alia — courts directed by statute to have regard to the “ascertainable wishes and feelings of the child concerned”

  • HOWEVER: “Overtly paternalistic” welfare principle obliges judiciary to reach decision which in their view most accords with child’s best interests (regardless of child’s own views)

• Eekelaar: Concern that when courts reach decisions that conform with “welfare” principle, take little account of child’s true views — fear that adults (judiciary) subject children to “coercive paternalism” and ignore child’s interest in making choices

  • Develops approach to promoting children’s views — dynamic self-determination: method of decision-making intended to bring child to threshold of adulthood with maximum opportunities to form and pursue life goals which reflect as closely as possible an autonomous choice

Note: Key issues: 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

*Dwyer

2010

The Case of Children’s Superiority

NOTING that children have historically been viewed (by Western intellectual tradition) as occupying an inferior moral status (only rational, autonomous beings are “persons” belonging to the moral community):

Argument: Children are superior in moral status — while children lack certain aspects of cognitive functions, potential to develop those aspects nullifies adults’ advantage even on that measure

(1) “Moral status” — a characteristic that moral agents attribute to entities, by virtue of which they matter morally for their own sake — determines whether and to what extent moral agents – including political and legal decision makers – should give consideration and weight to a being’s wishes, interests and integrity (ie. moral status as giving rise to moral obligations and imposing limitations on action)

• Important to determine what (relative) moral status...