#1773 - Children - Family Law

Children’s Rights

What is childhood?

• When it begins

  • Childhood in law begins at the birth of the child

  • The foetus is not considered “a child” but per St George’s Healthcare Trust it is a “unique organism” protected “in a variety of ways” by the law

    • However, the mother can choose to have a lawful abortion and the father can do nothing about this (C v S)

• When it ends

  • Children Act 1989:

    • S.105 “a person under eighteen”

  • But this is not necessarily the end

    • 16 year olds can marry with parental permission

    • And you cannot adopt until age 21.

Parent’s Rights, Responsibilities and Discretion

• Parental Rights – the difficulties in the definition

  • There is a lot of talk of “parental responsibility” in the Children Act – possibly to emphasise that children are not possessions but people to be cared for

    • But s.3(1) “In this Act “parental responsibility” means all rights, duties, powers, responsibilities and authority

      • Which by law a parent of a child has in relation to the child and his property”

    • Herring: so parents also have rights as well!

  • Two important distinctions

    • Firstly, we need to distinguish when talking about parent’s rights:

      • The rights a parent may have as a human being.

        • These will be called a parent’s human rights and would include e.g. free speech, right to life

      • From what we actually mean: the rights that a parent may have b/c she/he is a parent.

        • These will be called parent’s parental rights and include deciding where the child will live.

    • Secondly when talking about parental rights, we need to be clear what we mean. E.g. parent’s right to feed a child could mean three things:

      • 1. This could mean that third parties or the state cannot prevent the parent carrying out this particular activity

        • – no-one is entitled to prevent a parent feeding the child what food the parent believes appropriate

      • 2. Or it could mean that the state must enable the parent to perform this activity

        • So the State is obliged to ensure that parents have enough money to so they can provide enough money to fulfil the child’s needs

      • 3. Or it means that the acts of parents are lawful.

        • This means that although it may be unlawful for a stranger to feed the child, the parental right means it isn’t unlawful for a parent to feed a child.

• Are parent’s rights and responsibilities linked?

  • Some views

    • Lord Scarman in Gillick

      • Parental rights are derived from the parental duty, and exist only so long as they are needed for the protection of the person and property of the child

        • The rights exist for the purpose of promoting the child’s interests

    • Bainham:

      • Position is not that straightforward – parents have rights b/c they have responsibilities

        • And they have responsibilities b/c they have rights

    • Freeman:

      • Children have a right to responsible parents

  • The Child-centred and Parent-centred debate

    • McCall Smith:

      • Child centred rights are given to parents to enable them to carry out their duties

        • So the parent has the right to clothe the child as an essential part of enabling the parent to fulfil her duty of ensuring the health of the child

      • Parent centred rights exist for the benefit of the parent

        • So a parent can decide what religious upbringing the child should have. The parent gets to decide how to bring up the child in the most appropriate way

          • These do no harm to the child, do not positively promote welfare, but can benefit the child.

    • Herring: Distinction does not entirely work

      • Is the right to feed the child a parent or child centred right?

        • Such a right is essential for the health of the child

        • But what kind of food is provided (e.g. only vegetarian diet) is up to the parent

      • Also, religious upbringing, diet, humour all contributes to a diverse society

        • So arguable that is promoting child welfare

      • However McCall’s distinction does do a good thing:

        • Shows that areas which parents have no discretion – e.g. cannot let child starve

        • But also areas where parents do have discretion – e.g. whether to feed 5 portions of vegetables a day.

    • Baroness Hale in R(Williamson) v Sec State Education [2005]:

      • Children have a right to be properly cared for and brought up so they can take their place in society

        • Their parents have both the primary responsibility and primary right to do this

      • The state can step in to regulate the exercise of that responsibility in the interests of the child and society

        • But the child is not a child of the state, and it is important in a free society

          • that parents should have a large degree of autonomy in the way they discharge their parental responsibilities

Why do parents have rights and responsibilities?

• The child as property?

  • Children can be seen as the fruit of the parent’s labour through procreation, and therefore property of the parent

    • With this as the basis of parental rights

  • Herring: At first sight, seems quite an unpleasant idea – people not normally regarded as property which can be owned

    • And to describe parent’s legal relationship to their children as same as to their car or washing machine seems inappropriate

  • Barton and Douglas: But property notion has something to be said for it

    • If a child is removed from hospital by a stranger shortly after birth, parents might naturally say “their” baby has been stolen

    • Also, we believe parents should have the right to bring up their children and not to have them removed w/o sufficient justification, like property

• Children on trust

  • The theory is that children have rights as people – as the child can’t exercise these rights, the parent does so on the child’s behalf

    • 1. So the parents might be said to hold the rights of the child on trust for the child until they are old enough to claim them for themselves

    • 2. The parents hold the rights of the child on trust for the state. The parents care for the child before they become a citizen and a member of the state themselves

    • 3. The parents hold the rights of the child on a purpose trust – the purpose of promoting the child’s welfare

  • Differences theoretically between the three approaches –

    • in 1. Parent is responsible to the child,

    • in 2. Parent responsible to the state,

    • in 3 it is unclear who the parents are responsible to.

  • Advantages =

    • trust law is designed to stop trustees abusing the rights in the possession – must always be directed to the child.

    • And trustee duties have been altered so that while they do not have to get everything right, they are prevented from making manifestly bad decisions./

  • Disadvantages

    • There are some uncertainties technically

      • What precisely is the subject of the trust?

      • Who created it?

    • There are also practical problems

      • It may be justifiable to place on trustees heavy obligations never to consider their own interests when dealing with the trust property

        • But caring for children is a 24 hour obligation...