Family law notes fully updated for recent exams at Oxford, UK. These notes covers all the major LLB family law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).
These notes are formed directly from a reading of the cases and main texts and are vigorous and concise.
Every major topic is dealt with in three ways:
A) One page summaries of important c...
The following is a more accessible 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:
Should Children have the same rights as adults?
Liberationist Theory
The extreme liberationist approach
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”
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
But more for ideological reasons – expanding freedom as a way of life is worthwhile in itself
Freedom is a difficult burden for adults as well as children.
Why this is rubbish
Most children are unable to use the rights of adults
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”
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.
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 –
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
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.
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
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
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.
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.
Autonomy interest
This is the freedom for the child to make his or her own decisions about their life.
The hierarchy of interests
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.
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
Might then impact on the range of choices open to them when they’re 20, stopping them pursuing their goals.
So state might be justified in infringing autonomy
Dynamic Self-Determinism
Promoting child’s welfare is served by encouraging this principle
The process is dynamic because it appreciates that the optimal course for a child cannot always be mapped out at the time of the decision
And may need to be revised as the child grows up
It involves self determinism because the child itself is given scope to influence the outcome
The aim is to bring a child to the threshold of adulthood with maximum opportunities to form and pursue life goals which reflect as closely as possible an autonomous choice
Thus, in making decisions about the child’s upbringing, care should be taken to avoid imposing inflexible outcomes at any early stage in a child’s development
Which unduly limit the child’s capacity to fashion his/her own identity, and the context in which it flourishes best.
The problems
We can only look back as adults
Eekelaar: Adults need to look back on their childhood and we will probably say that we would not now have wanted every...
Buy the full version of these notes or essay plans and more in our Family Law Notes.
Family law notes fully updated for recent exams at Oxford, UK. These notes covers all the major LLB family law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).
These notes are formed directly from a reading of the cases and main texts and are vigorous and concise.
Every major topic is dealt with in three ways:
A) One page summaries of important c...
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