This is an extract of our Theoretical Perspectives On Children And Childhood document, which we sell as part of our Family Law Notes collection written by the top tier of Oxford students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
THEORETICAL PERSPECTIVES ON CHILDREN AND CHILDHOOD: RIGHTS, WELFARE AND DUTIES THE NATURE OF CHILDHOOD Flacks, S. (2014) 'Is childhood a 'disability'? Exploring the exclusion of children from age discrimination provisions in the Equality Act 2010' Child and Family Law Quarterly 421
- Equality Act 2010 didn't include age discrimination against u-18s - what does this say about children's autonomy, capacity and right to equal treatment
- "whether the question of children's capacity to make decisions, the main ground on which children are denied all the human rights enjoyed by adults, should be revisited in light of the adoption of the Convention on the Rights of Persons with Disabilities (2006), under which a finding of incapacity on the basis of disability constitutes discrimination"
- notes that there are a number of equations of disability with childhood
- Harriet Harman (in discussing the bill) said there was little evidence of harmful age discrimination against young people - but perhaps it basically is age discrimination but people choose to formulate it in a different way?
- 43% of key local authorities don't have specific strategy for dealing with youth homelessness
- but age, according to Sandra Freeman "does not define a discreet group" so there's not explicit reason for why it shouldn't include children? We'll all be children and will all hopefully be old, so it doesn't have the "us" and "them" style of racism or sexism
Christian Institute v Lord Advocate  UKSC 51, at para 67-77 ONLY These paragraphs are discussing the "human rights challenge" i.e. I guess they're gonna discuss the significance of Art 8 rights Here there was an argument made that the compulsory appointment of a named person to serve as the guardian of the child has the potential to run counter to the Article 8 rights of the legal parent, particularly in cases where the parent does not consent to the appointment There was also an argument made that the Art 8 rights of children and young people might be at risk where appointments of guardians/ parental status are readily made because it may set the threshold too low for the sharing of significant information on the child/ young person
CHILDREN'S RIGHTS AND INTERESTS Note that the focus in this section is on children's rights and best interests in theory rather than their use in English law e.g. in s1 Children Act 1989 or the Human Rights Act 1998. Instead we are interested in questions of how these concepts should be best be understood, whether there are convincing theoretical models that underpin them and the relationship between rights and best interests. Nonetheless, you may wish to draw on examples from previous topics to test the ideas explored in this section.
Best Interests and WelfareArchard, 'Children, adults, best interests and rights' (2013) 13 Medical Law Int 55-74 Best interests/welfare principle has been said to have "indeterminate content" Endorses an "interests" principle, not that the best interests must be pursued higher than anything else i.e. not a "best interests" principle
----The welfare principle applies to decision-making in a number of areas, but chiefly child protection, residence and contact disputes, assisted reproduction and biomedicine There is an important distinction between a 'threshold' and 'weighting' view of a child's capacities, which has significant implications for how we think from a rights perspective both about the child and the adult. The United Nations Convention on the Rights of the Child. I shall do so because, for all its limitations, it is a canonical statement of children's rights, and it is a widely ratified instrument of international law that has had increasing influence on domestic legal provisions in respect of children John Elsters and Robert Mnookin (separately) have criticised the welfare approach as being unacceptably open-ended, Mnookin calling it "'indeterminate and speculative'" Hart has said that laws cannot avoid having an "open texture" i.e. a certain element of indeterminacy because we can't predict what might happen in future and law ought to accommodate developments Is the criticism that welfare approach is indeterminate really valuable? How is it any worse than "significant harm" or other buzz phrases? Isn't law riddled with indeterminacy?
Criticism is valid: o indeterminacy leaves room for judicial discretion that will be exercised by judges, and that this is unacceptable
# Although maybe it's best that judge has discretion so can accommodate for all possibilities?
# Better that judge exercise discretion than someone else?
o What if discretion is used arbitrarily or subjectively?
o Does indeterminacy allows judges to exercise their discretion in a manner that is prejudiced or biased or ideologically suspect? - Piper, Reece Herring & Rece: There is hardly an area of the law where it is not claimed that judicial decisions reflect as much the personal opinions of the judiciary as they do legal doctrine. In other words, if this is a valid complaint against the welfare principle then it is one that can be made against a host of other legal principles' Using the word "paramount" suggests that it is difficult to take into account any other principles, but this is not what is best under the law o Contrasts with UNCRC Art 3 which says best interests [welfare] should be a primary consideration Is welfare approach (as paramount) even legit/ true? When we consider that in practice there are examples where the child's welfare isn't the paramount example because of other factors surrounding it?
Art 12 UNCRC denotes the need for the child's "voice" to be heard o Would rights-based language take away the autonomy of the child to specifically articulate/voice their thoughts? Does rights-based discourse demand that we make children compartmentalise/ make their feelings fall into one specific "box"/ right?
Adults are entitled to waive some of their rights because there is a presumption of capacity (i.e. waive right to be protected against battery (or worse) by undergoing tattoos or medical procedures), but children cannot do this. Are we assuming children lack capacity? Does right-based discourse enshrine this idea that we oppress and tell children what they can/ cannot do? Is welfare discourse better at avoiding this?
Choice theorists: is children don't have choice, they don't have rights...? Not true, they just need someone else to make choices for them as to how to best protect those rights they have been afforded Should children's voices be: o Consultative
# i.e. will be listened to to help someone such as a doctor make their decision, Brighouse o contributory
# part of what is in a child's best interests is that the child is happy to go along with the proposed course of action o independent
# the child is a distinct source of views as to its own interests and welfare Do we interpret Art 12 UNCRC as meaning that the older and more mature the child, the greater weight we feel comfortable attaching to their voice? - "the weighting account" Threshold idea such as Lord Scarman in Gillick: The underlying principle of the law ... is that parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and
intelligence to be capable of making up his own mind on the matter requiring decision." i.e. when a child reaches a point at which it is mature enough to make a decision on matter affecting it's interests, the child should have the right to make this decision "The law presumes that competence is acquired with the achievement of legal majority, namely and simply by reaching a certain age. The presumption of competence amounts to a legal fiction inasmuch as no-one can deny that many below the age are competent to make their own choices just as many above it are not competent to do so" adults have rights of determination, children merely have rights to express an opinion on matter Joel Feinberg's famous right of the child to an 'open future', a right of course which is possessed not by the child as a child but by the child in the person of its future adult self. "To summarise, dynamic self-determinism is a construction of what is in any child's best interests that acknowledges the proper nature and end of a child's development. It is not, as it claims to be, a reconciliation of those best interests with a child's own say in what happens to it. Indeed, as Nigel Thomas and Claire O'Kane note, 'Eekelaar places surprisingly little emphasis on the child's right to participate in the decision by actually expressing a view and having that view heard. He has little to say about the process of dialogue between children and adults over the child's situation and options for the future'." "In most situations (and certainly this will be true in the vast majority of medical scenarios), there is a simple disjunction. The decision made is either that which the adult commends or that which the child wishes for. The former is the same even if the child's wishes were taken into account. Thus, if the child's views were weighted very seriously but not sufficiently to be determinative of the outcome, this differs, as an outcome, not a jot from one in which the child's views were dismissed as displaying little or no understanding and intelligence. Note that if the child agrees with the adult's commendation of a decision, it is also impossible to see what difference the child's views made. One might ask, counterfactually, what would have been the decision had the child disagreed. But, again, such disagreement would either be of little or no weight or insufficient, however weighty, to have made a difference." Is there any legal or moral/ jurisprudential benefit in the distinction between Gillick and the Re A/ Re W cases?
Threshold view reinforces idea that adults have loads of consent/ autonomy,y abut children don't - does it "prove" that children shouldn't???
"Liberals have generally followed Mill in believing that a person's own good is never a sufficient warrant for denying or limiting his choices" vaccination example of welfare vs rights - long term rights e.g. to life/ health vs short term rights e.g. to autonomy/ having voice heard weighting approach means that 35 year old has no greater right to make decision than 15 year old in theory because it will all depend on how they are assessed (how competent they are, what they are competent to make decisions in) "weighted according to their maturity" determinative rights = where your opinion will be followed. This is what we afford to adults (generally) need to reconcile administrative/ general workableness with what might really be "right" i.e. it might be morally justifiably to have weighting/ assessment approach, but how practicable is it?
smoking/ drinking as examples/ issues United Nations Convention on the Rights of the Child Article 3 States that the best interests of the children shall always be a "primary" consideration: compare and contrast with "paramount" consideration in Children's Act 1898
RightsFreeman, 'Why It Remains Important to Take Children's Rights Seriously' (2007) 15 International Journal of Children's Rights 5 "heyday of the children's liberation movement" 1970s Freeman sees children's rights as no more or less important than rights generally "it has always been to the advantage of the powerful to keep others out"
Buy the full version of these notes or essay plans and more in our Family Law Notes.