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.]
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.
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.
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.