| Argument: there is a disjunction between theory and practice with respect to children’s rights; the ideas of theorists can be of more practical assistance if translated into a set of legal principles which provide clear guidance over the extent to which children’s rights can be fulfilled; theories shouldn’t be dismissed as having little practical impact as they may provide a sound intellectual basis for preferring one course of action over another risk that children’s challenges will be dealt with on an ad hoc basis and in a confused and inconsistent manner if a clearer understanding of rights theory is not advanced Introduction: Government and judiciary need to utilize the rights-based approach to children more wholeheartedly There is a greatly increased level of rights consciousness and ratification into domestic law of various international conventions have played their part in this Issues remain as to 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 Rights awareness and rights skepticism Children’s liberation The early American children’s liberationists probably did the concept of children’s rights a disservice by conveying a misleading impression that it is almost wholly concerned with giving children adult freedoms radical view which attracted publicity, causing the movement to be treated with scepticism Obvious dangers in granting adult freedoms to children bc of the slow rate of their physical and mental development as well as the danger in interfering with the relationship between parents and children, including potential damage to the family unit The slow development of children’s cognitive process makes the majority of children unfit to take complete responsibility and be granted adult freedoms Concerns have been raised that a failure to regulate childhood would lead to more exploitation of children, rather than less (Fox Harding) Another concern is the need to protect children from being forced into adulthood before they are sufficiently mature ie. children have a right to be children and not adults EG. Franklin Even quite young children are capable of competent thought and of making informed choices Adults, like children, make mistakes and may be ignorant and lack education and experience Argument that until quite young children are trusted with DM they are denied the opportunity of gaining experience in doing so and are prevented from developing DM skills Children’s rights and the parental role Constant theme of those questioning the notion of children being rights holders concerns their relationship with their parents However, doubts often rooted in the assumption that the concept of children’s rights revolves solely around children’s autonomy This assumption is false children have a range of rights and many such as the right to care and protection, have little to do with making decisions Difficulty in making a successful transition to adulthood unless given opportunities fo practising DM skills and given a dry run at adulthood However, a recurring concern is that promoting the rights of children, law and policy will undermine the status and authority of parents The prospect of government interference with the parental role has traditionally provoked strong hostility with concerns that a rights based approach would involve a closer monitoring of the way parents bring up their children, with the consequent undermining of their authority Some degree of family privacy is desirable but a hands-off presumption will endanger the concept of children’s rights by fostering the view that parental behaviour towards children should be outside of the law The dangers of rights talk The view that rights claims can protect the minority of children who need protection against their parents seems irrefutable Nevertheless, rights talk has a variety of opponents EG. Wellman urges greater restraint over employing the language of rights asserting the existence of unreal moral rights discredits the genuine ones and produces public scepticisim over the existence of such a concept Freeman: references to children’s rights turn out on inspection to be aspirations for the accomplishment of social/moral goals Some commentators even think rights themselves are a destructive concept (ie. makes society hollow with individuals asserting their rights against each other) Response: the language of rights should not be used loosely and many authors conclude that it is better to be a rights-holder than to depend on the kindness and favors of others Do children have any rights and if so which ones? Children as rights-holders Debate about whether children can justifiably be described as rights-holders at all The premise central to rights theories is that moral rights do exist Will theory: view that a person cannot be a rights-holder unless able to exercise a choice over the exercise of that right (choice/will theory) the capacity for choice is so important that it alone is capable of grounding all rights; since the existence of a right is dependent on the right-holders interest in choosing and since the majority of children lack the competence to make choices, proponents argue children cannot accurately be described as having rights Interest theory: a person has a right where his interests are protected in certain ways by the imposition of legal or moral normative constrains on the acts and activities of other people with respect to the object of one’s interests Difficulties with enforcement children often dependent on the adults who are acting in breach of their rights and may be too young to take steps to enforce rights Response by MacCormick: children may have moral rights prior to any correlative duties vesting in anyone to fulfill them or indeed without it being clear who is obliged to fulfill the right Moral right – a good of such importance that it would be wrong to deny it to or withhold it from any member of a given class What rights do children have? What interests are to be translated into moral rights and what moral rights are to be translated into legal rights? Many commentators accept moral rights are translated into legal rights when there is some recognition of importance by the rest of society and consequently the imposition of correlative legal duties on others regarding the fulfillment of those rights Criticism of interest theory too broad and the interests are without clear demaracation (ie. which interests are to serve as the ground of rights?) Eekelaar’s practical response was to classify children’s interests according to three groups: basic (immediate physical, emotional and intellectual care and well-being), developmental (claims on the wider community to maximise their potential) and autonomy interests (freedom to choose his own lifestyle and to enter social relations according to his own inclinations); where an autonomy interest conflicts with an interest in the other two categories, the latter interests should prevail Point: although many theorists accept that children can be rights-holders, there remains no clear test providing guidance over what rights they have or should have Nevertheless, the language or rhetoric of rights is a politically useful tool to ensure the achievement of certain goals for children and perhaps strict theoretical justifications for the existence of moral rights aren’t as important as believing that children are rights-holders International human rights Children’s rights and the role of paternalism Children’s autonomy and the role of paternalism Claims that children have a right to autonomy the argument is that as human beings, children should like adults, be free to lead their own lives according to their own conception of a good or worthwhile life, provided this does not illegitimately restrict the liberty of others to do the same Few philosophers today consider that children have the competence for complete autonomy and some see paternalism as having an important role to play in restricting children’s powers of self-determination Many theorists see little need to accord children choice rights before they gain the capacity to reach wise choices Such views provide a morally coherent justification for a paternalistic interpretation of children’s rights, but fill others with dismay EG. Eekelaar considers it quite wrong to assert than an individual’s interests can be determined/asserted by someone else Welfare versus rights – restraining paternalism? Paternalism seen by some as essential to the relationship between parent and child However, the prospect of unrestricted paternalism being applied to override children’s choices leaves many writers with a sense of unease (ie. this may be exploted by those in a position of power over children) Eekelaar argues that the when courts are reaching decisions to conform with the welfare/best interests principle, this formula is sufficiently indeterminate and takes little account of the true views of the child;...
|
