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Should Children Have The Same Rights As Adults Notes

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Should Children have the same rights as adults?
Liberationist Theory

The extreme liberationist approach o Children should have all the rights that adults have
? This includes the right to vote, work, travel, use drugs and have sex
? Holt: the law sees children as being wholly subservient and dependent... a mixture of expensive nuisance, slave and super pet" o Ferguson: May even go beyond will theory, b/c not actually about choice at all for some advocates - they will give rights regardless of ability to exercise them
? Farson: What is good for children is beside the point

We will grant children rights for the same reason we grant rights to adults - not b/c we are sue that children will be better people o But more for ideological reasons - expanding freedom as a way of life is worthwhile in itself o Freedom is a difficult burden for adults as well as children.

Why this is rubbish o Most children are unable to use the rights of adults o While this might be okay if only children could exercise them, danger of abuse by "litigation friends" who might assert on their behalf
? E.g. Fortin: the right of the child to know genetic parentage

Is normally asserted by F as a pugnacious adult to assert their own claim - child themselves haven't necessarily used or raised it

Courts give effect to possibly false assumption that biological links have distinct significance to children The Will Theory

An individual has a right as a "protected exercise of choice" o The moderate liberationist approach
? Herring: Modern argument is harder to rebut - i.e. that shouldn't discriminate on grounds of age to determine whether people have rights or not

Only on grounds of competence - so if not competent to drive, not allowed to drive - but not based on how old you are. o E.g. 15yo in E who clearly made a competent decision to refuse treatment would therefore have a right to refuse treatment and right to choose like an adult.
? Problems

But it would cause bureaucratic difficulties - o can a barman assess every customer on whether they understand the potential effects of alcohol before they serve them?

Age is also predictable - enables people to plan their lives w/o fearing that they will be found incompetent. Interest Theory

MacCormick: Clearly children are often too young to exercise rights o However, this doesn't mean that children don't have sufficiently important interests which can generate duties and obligations on other


Just which can't be exercised and asserted by the child themselves

E.g. child has a basic interest to be clothed and fed - this engenders duties on the parents to provide the child with adequate food and clothing

In the absence of parental intervention, then the duty falls on the State to intervene to protect the child's interests. o Problems
? Framing the law's approach in this way does not make any difference to the child as what interests are to be recognised

requires an assessment of what children need which justifies imposing obligations on others to provide it o Could just simply ask "what is in a child's best interests" and would get the same results
? Also, only adults identify what interests are important, not the child themselves, so difficult to say how it is more child-centric than the welfare principle. Eekelaar: Children's rights and dynamic self determinism

There are the kinds of interests relevant to children o Basic interests
? These are the essential requirements of living - physical, emotional and intellectual interests

E.g. the interest in being provided with food and developing emotionally and intellectually
? This duty lies on the state to provide where parents fail to do so. o Developmental interests
? All children should have an equal opportunity to maximise the resources available to them during their childhood

So as to minimise the degree to which they enter adult life affected by avoidable prejudices during childhood.

Apart from education, probably rights which are hard to enforce. o Autonomy interest
? This is the freedom for the child to make his or her own decisions about their life.

The hierarchy of interests o Of the three interests, the autonomy interest would rank as subordinate to basic interests and developmental interests.
? So bad decisions can be made by children, but not ones which infringe these other interests.

So the child's decision to go to school would be overridden

But not the child's decision to wear jeans.
? Obviously there will be borderline cases, but you get them in every theory. o Herring: A pure autonomy approach his hard to apply to children
? The way a child lives his or her childhood tends to affect choices in later life

So letting a child pursue their vision of the good life and not going to school from ages 10-20

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