Children’s Rights as Relational Rights: The Case of Relocation
55 Pages Posted: 16 May 2010
Date Written: May 11, 2010
A petition for relocation of children when parents separate is among the most complex legal matters. Whichever way the decision goes, it determines the fate of the family and directly impacts the children involved.
During the past years, the issue has drawn considerable attention, as greater mobility has been accompanied by an increase in the number of petitions for relocation. The complexity of these petitions casts a heavy burden on legal policy makers. Various jurisdictions have had difficulty in arriving at a coherent solution which would optimally protect the rights and interests involved. In this paper, I suggest a novel schema for resolving these cases, one making use of a model that perceives children’s rights as relational rights.
This paper argues for the need to re conceptualize children’s rights as relational. Understanding the rights of the child as relational rights allows us to realize the advantages of approaching children as rights holders: Rights represent moral agency – and children are moral agents, even if they have not fully realized their potential as such. Granting children rights also serve as a means to social empowerment. At the same time, the relational dimension neutralizes the difficulties that may be expected to flow from the classical liberal rights model — first and foremost, the concern about damaging the unique tapestry of the family and the relationships between the child and her parents. The concept of children's rights as relational rights places the child at the center of any legal determination and mandates consideration, as part of the child’s array of rights, of her relationships with the central figures in her life — parents, members of extended family, and friends from various social circles in which she takes part.
The first part of the article, maps out the rights and interests of the parties in disputes over relocation. The second part surveys existing legal doctrines pertaining to relocation while pointing out inconsistencies in that treatment. The third part offers the alternative analysis, mentioned above. The fourth part is devoted to applying the proposed approach to the test case of relocation disputes. In the course of that inquiry, I will examine the meaning and force of the right to identity and the right to meaningful family relationships as well as the place of the child’s desires in the court’s decision. The paper concludes with an analysis from a gender perspective, of the effect of the relational model on the situation of mothers.
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