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.

‘Families in All Their Subversive Variety’: Over-Representation, the Ethnic Child Protection Penalty, and Responding to Diversity Whilst Protecting Children

This article explores the neglected issue of the over-representation in the child protection system of children from ethnic, cultural, religious, racial, and linguistic minorities. It focuses on the accommodation of children’s diverse backgrounds within the s31(2) threshold and s1 “best interests” stages of intervention under the Children Act 1989. Firstly, it introduces the ethnic child protection penalty as a new tool for capturing the complex nature of over-representation of these children. Secondly, it proposes a framework for understanding the judicial approach in higher court decisions on the current extent and nature of accommodation. Thirdly, it employs the penalty concept to help explain why case law analysis reveals difficulties with the current factor-based approach, whereas empirical research suggests generally satisfactory accommodation in practice. It concludes by proposing a contextualised framework for decision-making in relation to child protection.

The paper is published in (2014) 63 Studies in Law, Politics, and Society 43-87, and available here.