An Argument for Treating Children as a ‘Special Case’

This chapter’s argument stems from the premise that legal language should speak for itself. The ‘paramountcy’ principle suggests the prioritization of children’s interests, and ‘children’s rights’ suggests some aspect of distinctiveness to children’s interests. But there is academic consensus in respect of both that children’s interests cannot and should not be prioritized over those of others. This chapter examines the justification for the contrary perspective, and for treating children as a prioritized ‘special case’ in all legal decisions affecting them.

Four key counter-arguments frame the discussion. First, the ‘social-construct’ objection: as a social construct, childhood cannot sustain the prioritization of children’s interests over those of others. Second, the ‘vulnerability’ objection: children’s vulnerability is either not unique or suggests dependency or interdependency, not prioritization. Third, the ‘family autonomy’ objection: parents’ rights and the family unit justify deference of children’s interests. Fourth, the ‘equality’ objection: equal moral consideration makes prioritization unjustifiable.

[This chapter is published in Elizabeth Brake and Lucinda Ferguson (eds), Philosophical Foundations of Children’s and Family Law (OUP 2018).  A pre-edited version is available here.]

Introduction: The Importance of Theory to Children’s and Family Law

What defines family law? Is it an area of law with clean boundaries and unified distinguishing characteristics, or an untidy grouping of disparate rules and doctrines? What values or principles should guide it – and how could it be improved? Indeed, even the scope of family law is contested. Whilst some law schools and textbooks separate family law from children’s law, this is invariably effected without asking what might be gained or lost from treating them together or separately. Should family law and children’s law be distinguished or treated together?

One would expect disagreement on these questions in any context. In bringing together theorists from multiple jurisdictions and at least two primary disciplines, we should not be surprised to find deep differences in approach reflecting different methodologies and foundational questions. The tension between them, we hope, can illuminate and enrich discussion on all sides. Further, through combining insights from law and philosophy, we also intend to add another layer to the current trend to focus on the empirical in family law research, and highlight how critical debates in children’s and family law are at once theoretical and empirical in nature. Understanding the nature and content of a child’s “best interests” as contained in multiple jurisdictions’ legal frameworks regulating private and/or public law concerning children, for example, requires us to approach the matter both conceptually – in order to adjudicate between frameworks – and in terms of fit with evidence from research. This immediately makes any satisfactory resolution more uncertain, contested, and subject to criticism. It is in this context that we hope that the conversations between law and philosophy, their points of agreement and divergence, can advance stalled debates.

International differences correspond, of course, to differences in law, policy, and procedure. Contrast, for example, England and Wales’ ‘single pot’ approach to the distribution of property and maintenance upon marriage breakdown to the more common, “pillarised” treatment of matrimonial property, pensions, and maintenance. The difference in system design necessarily affects the available potential justifications. As a more nuanced aspect of the impact of system design, one might consider the normative difficulties created by the variation in default regimes adopted in relation to matrimonial (or marital) property between US states. Facing jurisdictional differences – like considering historical changes within one’s own jurisdiction – can yield an awareness of the context-specificity of one’s own starting points. And awareness of how things are done differently can lead us to call into question our own ways of doing things. Such awareness might alert us to unintended consequences of legislation or to innovative solutions. And, more fundamentally, it might cause us to interrogate what we take as the core, the normal, or even the natural. This is where philosophical investigation becomes indispensable.

In Section II, we outline a number of respects in which the approaches taken by (academic) lawyers and philosophers writing in this field tend to differ, as well as how the structure of this collection seeks to cut across and highlight both these divergences and shared accounts. In Section III, we introduce the key themes that underpin the collection, which demonstrate the potential for cross-fertilisation between legal contexts as well as between legal and philosophical perspectives. When we refer to ‘lawyers’ and ‘philosophers’, we have in mind those working in family law and children’s law in particular.

[This chapter is co-authored by Lucinda Ferguson and Elizabeth Brake, and is being published in Elizabeth Brake and Lucinda Ferguson (eds), Philosophical Foundations of Children’s and Family Law (OUP 2018).  A pre-editing version of this chapter is available here].

Commentary on Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)

This chapter comprises a commentary on a rewritten judgment of the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) 2004 SCC 4. That decision concerned the constitutionality of the ‘reasonable punishment’ defence to the physical punishment of children.  After outlining the original judgment, I critique the rewritten judgment, and ask whether reframing the legal issue in terms of children’s rights might be more likely to invert the premise of the s43 debate than a human rights perspective.  It will be published in Helen Stalford, Kathryn Hollingsworth, and Stephen Gilmore, eds, Children’s Rights Judgments (Hart, 2017).

A pre-editing version of my chapter can be found here.

The “Best Interests” of the Child Principle: Looking Beyond the Aspirations of Universal Embrace

Introduction

Whilst the child population of the People’s Republic of China has been declining in recent years,[1] it still has the largest population of children in the world.[2]  The size of the child population, combined with factors such as its vast, varying geography and its economic development, means that children’s lives vary enormously within China.  Thinking about how the law should regulate decisions affecting children’s lives within a Chinese context highlights the difficulties of being able to generalise even for a single jurisdiction, let alone globally.  Yet, that is ostensibly what the United Nations’ Convention on the Rights of the Child, the CRC, purports to do.

But what does this mean?  Imagine a common situation:

A married couple have young children, say a two-year-old boy and a five-year-old girl.  The wife had worked prior to the first child but, after the birth of the first child, she stayed home to raise them.  The husband has a good job, but he works long hours to provide financially for the family.  For this reason, he does not have much of a relationship with the children, but it is clear that he loves them.  Their marriage breaks down and they divorce. 

Does the universality of the CRC mean that the answer as to how the children should be raised now needs to be the same in every country?  If so, what is the right answer?  Or do local considerations matter?  And, if so, how?  What if the absence of a strong welfare state means that the financial means of the household raising the children are critical to those children’s life opportunities?  Does this suggest that the father alone should raise the children?  If we focus on the emotional bond the children have developed with their mother, are we punishing the father for showing his love and commitment to the children through paid work?  What if, when he was working those long hours, he viewed it as a short-term sacrifice of time with his children in order to be able to provide them a better future, when he would be able to spend more time with them?

Whilst simply dividing the children’s time evenly between both parents might appear to do what is in the children’s “best interests”, might this be more about parents’ rights than children’s “best interests”?  Of course, there will be many cases where parents will be able to decide themselves to divide their children’s time between their two homes but those cases in which the law, via a court order, has to step in, are the very cases in which such division is least likely to be successful.  Hong Kong is in the midst of considering this issue again, with proposals to move from the language of ‘custody’ to ‘parental responsibility’ and from ‘residence’ and ‘contact’ to ‘child arrangements orders’ as in England and Wales.  But much of the potential for the success of such reform will turn on the availability of state services to support non-intact families in working together.  What if a court knows that state resources are inadequate for this purpose in any particular jurisdiction?  Can that serve as an argument against such an order?  Or should they make it anyway because of the children’s (or parent’s) entitlements?

The ‘best interests’ of the child is now a universal principle globally applicable to the treatment of children, whether as a result of a particular state’s domestic law or international legal obligations.  All countries except the United States have ratified the United Nations’ Convention on the Rights of the Child, hence owe obligations under it.  Numerous countries have further entrenched their obligations by incorporation and even constitutionalisation.  This relationship to international law is often further complicated by earlier or independent (non-incorporating) use of the ‘best interests’ principle directly in domestic law, as in the English ‘welfare principle’.  Yet, the principle is also commonly subject to significant criticism such as that it is ‘indeterminate’ and has too narrow a focus.

Outline for the Lecture

In this lecture, I will draw on recent court decisions to examine the value of the ‘best interests’ principle in practice beyond the aspiration expressed by its adoption.  Whilst the ‘best interests’ principle has been universally embraced, to what extent can it offer a universal understanding of what is ‘best’ for children?  Should individual countries contextualise universal concerns or should there be truly local approaches to ‘best interests’?  Does it matter whether any particular country’s obligations under the ‘best interests’ principle are grounded in international law, domestic law, or both?  This issue turns at least in part on how courts in any particular jurisdiction understand the relationship between ‘best interests’ and children’s rights.  In individual cases, how can and should we determine by which criteria to determine the ‘best’ outcome for any child involved in a legal dispute?  In particular, how do children’s ‘best interests’ relate to parents’ interests?  What is the appropriate role for well-being indicators?  Could or even must a court be free to determine that it is ‘best’ for a child to cry in a BMW car, rather than laugh on the back of a bicycle?

Whilst the following discussion asks general questions, I necessarily cannot draw on the full range of jurisdictions in my discussion.  I include examples from English, Canadian, and European law to demonstrate contrasting perspectives on similar issues in different jurisdictions.  In the discussion that will follow my presentation, I look forward to audience members sharing their perspectives on the Chinese approach, as well as how the Chinese approach compares to that in other jurisdictions.

[1] The China Internet Information Center reports that the 2000 census found that there were 290 million children under 14 years old (22.89 percent of the population), which was 4.8 percent less than in 1990.  See China Internet Information Center, ‘China Has 290 Million Children’, online: <http://www.china.org.cn/english/SO-e/33644.htm> (18 March 2016).  Evidencing a further decline, Naftali reports that the Sixth National Census in 2010 found that there were 279 million children under the age of 18 years (21 percent of the population).  See Orna Naftali, Children in China (Polity Press, 2016) 1.

[2] Naftali, ibid.

 

A copy of the powerpoint presentation is available here.

Children’s Rights – Lecture series

These are the handouts for the overview lectures I provide on children’s rights: theory and legal examples.  I cover the following issues:

  • Issue 1 – The nature of childhood [handout here (also covering part of issue 2)];
  • Issue 2 – Three concepts that could govern the legal regulation of children – duty, rights, and welfare [handout here (covering the remainder of issue 2)];
  • Issue 3 – Sources of children’s rights:  (1) United Nations’ Convention on the Rights of the Child [handout here] and (2) the European Convention on Human Rights [handout here];
  • Issue 4 – Does it matter which approach we adopt?  (rights, welfare, or duty?)  [handouts here and here].

The Jurisprudence of Making Decisions Affecting Children: An Argument to Prefer Duty to Children’s Rights and Welfare

This chapter embraces the reasons for thinking that children possess children’s rights but suggests that these aims are currently better achieved through a duty-based approach to legal decision-making affecting children. My argument proceeds from the position that we are justified in seeing children as a “special case”, which means that children benefit from additional legal protection and priority beyond fundamental human rights that apply to all individuals alike. In deciding how best to recognise children as a special case, I suggest that three main competing approaches, children’s rights, welfare, and duties owed to children, should be seen as simply tools – language descriptors, ways of framing individual considerations, processes, and frameworks – for working with the same substantive content. Which approach we prefer or emphasise should depend on how well it guides decision-makers towards decisions that lead to or make more likely better outcomes for affected children.   After briefly outlining why current conceptions of children’s rights cannot meet this test, I explain why a welfare or “best interests” approach is no more able to satisfy this objective than the alternatives. The remainder of the chapter is focused on exploring the potential of a duty-based approach. I argue that duty can have three roles: as a tool to give specificity and resolve conflicts in current rights- and welfare-based decision-making; as a theoretical framework of itself, focused on the decision-maker; and as the basis for anchoring a virtue-led view of the aim for legal decision-making affecting children – to enable children to flourish on their own terms. I conclude by exploring the practical implications of a duty-based argument and discuss three key examples, namely the Court of Appeal’s decision in Re A (Conjoined Twins: Surgical Separation) (2001), the United Nations’ Convention on the Rights of the Child, and private law disputes concerning children.

Published in Diduck, Peleg, and Reece, eds, Law in Society: Reflections on Children, Family, Culture and Philosophy (Essays in Honour of Michael Freeman) (Brill, 2015)

The pre-print version is available here.

Not Merely Rights for Children But Children’s Rights: The Theory Gap and the Assumption of the Importance of Children’s Rights

This article aims to reinvigorate the debate over the nature and value of the claim that children have children’s rights. Whilst the language of rights and children’s rights continues to be widely employed, and even relied upon, in many situations involving the legal regulation of children we lack strong child-centred evidence that it is better to regulate children through the lens of children’s rights, rather than their ‘best interests’ or in terms of duties owed to them.

My argument proceeds in four stages. Firstly, I distinguish between rights for children and children’s rights. Understood in the sense of fundamental human rights, children are plainly rights-holders. The critical debate relates to children’s rights. Secondly, I argue that the expressive and procedural reasons for affirming that children hold children’s rights are contingent upon improved outcomes. Thirdly, I contend that we do not currently have a child-centred theory of children’s rights that improves, or increases the likelihood of improved outcomes in legal practice. This is not a claim that children do not have children’s rights. My argument undermines the current potential of both individual children’s rights and a rights-based framework of reasoning to improve outcomes for children.

Finally, I argue that without such a theory we currently have no good evidence that it benefits children to think of them in terms of children’s rights in law. This is an optimistic conclusion as it suggests that with greater attention on making decision-making truly child-centred, or explicitly recognizing the inability to do so, the purposes for which we want to believe that children have children’s rights might be better achieved than they are at present.

This paper is published in (2013) 21 International Journal of Children’s Rights 177-208, and available here.

Uncertainty and Indecision in the Legal Regulation of Children: The Albertan Experience

In this article, the author uses Alberta legislation and case law to test two common perceptions held in relation to the historical treatment of children’s (legal) status in Canada: first, that legal regulation oscillates between welfare- and rights-oriented perspectives; second, that the same uncertainty in approach applies in relation to all regulation contexts, including child welfare and youth justice. These perceptions are often used as the baseline of analysis from one explores (any number of) recent developments in Canada, federally or provincially. Yet, examination of the Albertan experience calls into question the accuracy of this view of the shifting approach to the legal regulation of children’s status.

Using definitive cases from the Alberta courts, the author argues that neither of these perceptions accurately reflects the narrative of children’s status in Alberta. The article reveals the greater complexity of the changing approach to legal regulation of children’s lives. In addition, the article suggests that the nature of the uncertainty and ambivalence evidenced in court decisions and legislative reforms is context-dependent, but ultimately driven by tensions inherent within the modern conception of childhood. Consideration of the Albertan experience is particularly revealing because it was the Alberta courts that both introduced the concept of the “mature minor” into Canadian common law in the mid-1980s and then determined that child welfare legislation superseded the child’s common law status as decision-maker.

This paper is published in (2007) 23(2) Canadian Journal of Family Law 159, and available here.

Retroactivity, Social Obligation, and Child Support

The Supreme Court of Canada recently heard argument on the circumstances in which retroactive child support orders are justified. The claimants are four Alberta fathers who have been held subject to retroactive support obligations that extend to before the custodial parent’s application for variation of the existing order. The fathers argue that these orders are unfair and not justified by the Federal Child Support Guidelines. Supporting their argument is the position of courts in British Columbia, Ontario and Saskatchewan; these courts have adopted a more restrictive interpretation of the circumstances that justify retroactive orders than has the Alberta Court of Appeal.

This brief comment addresses the critical theory issues before the Court. First, is it the obligation or merely the extent of the obligation that is retroactive? Is the idea of retroactivity in the context of the child support obligation a misnomer? Second, what is the nature of the child support obligation? Third, and consequently, in what circumstances is a retroactive order justified?

This paper is published in (2006) 43 Alberta Law Review 1049, and also available here.

Trial by Proxy: How Section 15 of the Charter Removes Age from Adolescence

The issue of age-based discrimination under s.15 of the Charter most usually arises in relation to older Canadians. There has been little discussion as to how the s. 15 right to equal protection and equal benefit of the law regardless of age applies to minors. This article seeks to counter this trend, in particular in relation to adolescents’ autonomy right to make medical treatment decisions. There is little serious consideration given to the question of age discrimination against adolescents who wish to refuse critical medical care because adolescents are perceived as different from adults, different not just because of their youth, but because of their lack of maturity; a minimum age for entitlement to rights protection is employed as a proxy for this immaturity.

This article disagrees with this historical understanding of the relationship between adolescents’ maturity and their ability to exercise their own legal rights. Age is not always an adequate proxy for a minor’s maturity to make her own decisions, which is why the use of age in this way, in certain cases, violates a minor’s s. 15 equality right. The first section of this article articulates this argument in relation to the right to refuse critical health care. I argue that the four governing legal doctrines — health care and consent legislation, the common law “mature minor” doctrine, child welfare legislation, and the parens patriae jurisdiction — together fail to respect adolescents’ decision-making maturity.

Section two uses the current state of the literature within psychology and medical philosophy to develop a more realistic assessment of what it means to make a mature decision. I argue that when an adolescent satisfies this reworked maturity standard, it infringes her s. 15 equality right if her treatment decision is overridden by legislation or the court. I propose a set of guidelines to determine the appropriateness of using age as a proxy for maturity in relation to a selection of legal doctrines, and when such usage violates a minor’s s. 15 equality right.

The third section explores broader issues raised by this argument. I argue that a proper understanding of adolescents’ decision-making maturity directly affects the constitutionality of other legal doctrines such as those governing access to birth control and abortion, and those that determine the legal age of criminal responsibility. My analysis suggests that we will have to rethink how we regard adolescents as citizens. Given that prospect, what impact will this have on our current models of how the law interacts with individual family members, and how the notion of equality impacts upon individual family members? I propose that the development of a new language of children’s rights is central to ensuring that minors are not wrongly denied the exercise of their Charter rights, as current legal doctrine permits in the case of adolescents who refuse critical health care.

This paper is published in (2005) 4 Journal of Law and Equality 84-102, and also available here.