#1851 - Should Children Have The Same Rights As Adults - Family Law

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 desire as children to be granted.

    • BUT Archard:

      • Parents might face a choice between encouraging a child to do music or sport

        • It we ask what as an adult the child would want, this is problematic bcause what they child will think when they grow up will depend on the choice

          • A child encouraged to play music who becomes successful at it will consider this a good choice

          • But a child encouraged to play sport who then becomes successful will also approve.

      • Also, parents will always decide using adult eyes

  • Modern society is a little too complex for this theory

    • Smith: A child is a highly gifted artist. Should parents permit or encourage the child to devote their life to this?

      • If parents do, is it not arguable that they have limited the range of lifestyles in adulthood – they’ll be a gifted artist, but probably not much else.

      • But if parents encourage otherwise, the child might be a gifted artist, but not quite good enough to be a pro.

    • Smith: Divorce – child has to go to one or other of parents as primary care giver

      • The decision has to be made, and will automatically limit options later.

  • Why just children?

    • The university student who fails their degree because they don’t work for it can be said to be limiting their options just as much

      • Why do we not permit children to do so, but young adults can?

      • Perhaps you have to say that at some point the training wheels have to come off – it increases as you get older.

Is there a difference between a welfare based approach and a rights based approach?

Striving for the same thing?

• In their ideal forms, both strive for the same thing

  • Paternalism takes as its starting point that children are vulnerable and are in need of protection from the dangers posed by adults, other children and themselves

    • Children lack the knowledge, experience or strength to care for themselves, and therefore society must do all it can to promote children’s welfare

  • However, the rights of children to clothing, food, education etc. could equally be supported in terms of a child’s right to their basic needs

    • And as being necessary to promote a child’s welfare

• If our goal is the best results for children, then if both work perfectly, then likely to achieve the same results

Would there be any practical difference?

• Would there be a difference in practice if our overall framework was the ECHR with welfare considerations, rather than the Welfare principle with rights considerations?

  • Me: Certainly different emphasises... compare the two cases – maybe the latter places rights more strongly and more robustly than the former

    • Gilliker

      • Lord Fraser:

        • The solution depends on what is best for the welfare of the particular child

          • In the overwhelming majority of cases the best judges are parents

          • But there will be some cases where the doctor is justified in proceeding even w/o the parent’s consent

      • Fortin: The adolescent’s legal capacity hinges on notions as debateable as understanding and maturity –

        • this fundamentally hampers its effectiveness as a means of settling internal family conflicts

      • Gilmore: While the HoL made passing references to teenage independence, the central issue was not whether the child had a right

        • The focus was on resolving the potentially conflicting claims of doctors and parents to know what was in a child’s best interests

    • R(Axon) (post ECHR)

      • Sieber J:

        • Although the facts are different from Mabon, Thorpe LJ’s comments do illustrate the rights of young people to make decisions about their own lives

          • at the expense of their parents has become an increasingly...