Someone recently bought our

students are currently browsing our notes.

X

Should Children Have The Same Rights As Adults Notes

Law Notes > Family Law Notes

Updates Available  

A more recent version of these Should Children Have The Same Rights As Adults notes – written by Oxford students – is available here.

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:

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

Buy the full version of these notes or essay plans and more in our Family Law Notes.

More Family Law Samples