Not Merely Rights for Children But Children's Rights: The Theory Gap and the Assumption of the Importance of Children's Rights
(2013) 21 International Journal of Children's Rights 177-208
32 Pages Posted: 22 Nov 2012 Last revised: 19 Oct 2014
Date Written: February 10, 2012
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.
Note: I have published a second paper that develops this argument: 'The Jurisprudence of Making Decisions Affecting Children: An Argument to Prefer Duty to Children's Rights and Welfare' in Alison Diduck, Noam Peleg, and Helen Reece, eds, Law and Michael Freeman (Brill: Netherlands, 2014) (forthcoming).
Keywords: Children’s rights, rights for children, s 1 Children Act 1989, welfare principle, best interests, will theory, interest theory, expressive function of law, children’s autonomy, AC v Manitoba (Director of Child and Family Services) 2009 SCC 30
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