BLOG: There are challenges surrounding rights for children.
Author: Clair Breen, Associate Professor (Law), University of Waikato
About: The blogpost is based on a lecture at Centre for Research on Discretion and Paternalism in June 2018, and forms part of a forthcoming chapter in the book “Childs right and International Discrimination Law” (edited by Marit Skivenes and Karl Harald Søvig).
Photo: Colourbox / University of Waikato
It may seem unusual to ask the question of whether rights are right for children. It is 94 years since Eglantyne Jebb brought her Declaration on the Rights of the Child to the League of Nations, which then went on to adopt it. It’s almost 60 years since the UN adopted its Declaration on the Rights of the Child. It’s almost 30 years since the UN adopted the Convention on the Rights of the Child. The vast majority of the world’s states have gone on to ratify this particular treaty.
The preamble to the CRC affirms the connection between the rights of the child and the International Bill of Rights, an affirmation that suggests that the rights of the child are part of the broader family of human rights protection. A number of other treaties enshrining the rights of the child have been adopted by regional and global bodies charged with protecting and promoting children’s rights. These developments would suggest that states and international organisation would regard rights as being right for children.
However, some difficulties remain. From a legal and philosophical perspective, some of the challenges surrounding rights for children stems from perceived difficulties in giving effect to children’s rights because of the expression of rights as a means to describe the balance and exercise of public power in a discernible manner. This understanding has turned on the rights-holders being conceived as an autonomous, rational person. There is also the concern that rights for children have a negative influence on the natural bonds of families and that it puts parents and children in opposition to each other
It’s almost 60 years since the UN adopted its Declaration on the Rights of the Child
From this perspective, when we ask the question of whether rights are right for children, it looks like the problem lies with children. I’d prefer to say that the question of whether rights are right for children stems from the problem of how we understand rights especially because the idea of rights emerged in quite a specific historical and legal context and they were not conceptualised with children in mind.
In fact, as we will see, children were often quite clearly excluded from the realm of rights. The consequences of these early conceptions of rights continues to present challenges to us several centuries later.
Autonomy, Rationality and Rights: Some Early Background
There are many ways to consider what we mean by the term ‘right’. My preferred way is to start by examining the broader historical and political context in which the concept of rights emerged. In this way, I regard the right as a means of regulating the exercise of public power and thereby managing the relationship between the state and the individual.
This approach brings us to look at historical events in Western Europe from the late seventeenth century onwards as nations and scholars sought to conceptualise new ways of ordering political organisation and participation in opposition to authoritarian and arbitrary governments that had been the norm. The concept of the ‘social contract’ re-emerged as a hypothetical device to explain why and how individuals came together to form a political community.
Thomas Hobbes’ political theory was means to try to move away from government based on patriarchal theories of sovereignty and pre-existing hierarchical relationships that had facilitated close control over property, societal wealth and power and, as a result, individual freedom. John Locke also claimed that legitimate political power should only be based on consent, not on historical or inherited title. Locke went further and argued that government should exist to preserve what he described as the individual’s natural rights that were the rights to life, liberty and property. Thus, the concept of individual rights started life as a tool to protect the individual from the exercise of authoritarian and arbitrary state power.
Children were often quite clearly excluded from the realm of rights
Hobbes and Locke both emphasised the individual’s rational nature as the basis for giving consent to be ruled. This emphasis was a reflection of changing ways of thinking and the recognition and development of the scientific method as opposed to ways of thinking that were informed by religion and the mystical. The emphasis on rationality had the effect of Hobbes’ excluding children from the category of people that could enter his version of the contract social contract as, along with ‘fools and madmen’ they had no use of reason (Hobbes, 1651). Locke also linked freedom with rational thinking, a characteristic that he thought came with age which led him to conclude that children were not actually free (Locke, 1690).
Rousseau was also concerned with striking a balance between the freedom of the individual and the need to co-exist in a political state. Rousseau is interesting for his particular thoughts on children, education and child development, and the social contract. In Emile, he put forward the idea that children, in their natural states, were the prototypes of human freedom and goodness. Society as a whole would benefit if children were secluded from the corrupting influences of the adult world. But this period of seclusion also served an important purpose whereby education – as Rousseau perceived it – could be used to strengthen children’s innate goodness and so produce a more autonomous adult that would be ready to participate more fully and equally in his version of the social contract. Kant believed that children had certain moral rights that originated in their innate right to freedom. However, the fullness of the political freedom and its related rights that Kant articulated did not extend to children because they were dependent on their parents (Kant, 1785).
Jeremy Bentham, and later John Stuart Mill, rejected rights theory and advanced their theories of utilitarianism to describe how the relationship between the individual and the state should operate. However, the idea of Rational choice continued to prevail and it underpinned the utilitarian view that as a rational decision-maker, individuals would tend make the choice that maximised their happiness and minimised their pain. Although Bentham rejected ideas of natural rights, his also regarded children as lacking in rationality which prevented them from making those decisions that would incline them towards happiness (Bentham, 1781).
In line with his utilitarian approach to liberty, Mill argues human liberty was to prevail and the only restriction on liberty could arise when power was rightfully exercised over an individual to prevent harm to others. However, his ‘harm principle’, which only applied ‘to human beings in the maturity of their faculties’, did not extent to children or young people below the age of legal maturity (Mill, 1859).
On this basis, then, much of political theory in the eighteenth and nineteenth centuries was concerned with how to describe the basis of the balance of state power with individual freedom. As an aspect of that, rights were a device that set out the parametres of the individual’s freedom, and in so doing, rights served to limit the exercise of State power. Even where rights were not relied upon as a tool to manage the relationship between the individual and the political community, the requirement of rational thinking for political participation remained a key feature.
The relationship between rights and the ability to make rational decisions remained a dominant theme in twentieth century political theory. Writing as a mid-twentieth century legal positivist, Hart argued that rules originate in a legal system, as opposed to a moral code, so that only legal rules establish obligations and duties, as well as the powers to give effect to these rules. submitting to these rules, undertaking the duties that they entail and imposing obligations upon others requires a type of power which originates in the ability to exercise this power and this ability is something that only rational adults have (Hart, 1961).
The relationship between rights and the ability to make rational decisions remained a dominant theme in twentieth century political theory
John Rawls’ version of the social contract is one based on the recognition that human relationships are profoundly social. This thinking informs his ‘Original Position’, whereby we, as free and equal persons, jointly agree upon and commit ourselves to principles of social and political justice. Rawls’ version of the social contract– to a certain degree at least – is premised on notions of equality and autonomy. Rawls social contact legitimizes a degree of intervention to respond to behavior that is irrational; irrationality and intervention are measures in terms of acting to respond to prevent either immediate self-harm or, alternatively, to develop the capacities for rational choice which could lead the individual away from actions that might harm her or him.
There are a number of signals in Rawls’ work that suggest that children do not play a central role in his political theory. His reference to moral development suggests that he too regards children as lacking in the cognitive development that precludes them from being participants in the original position. Rawls also refers to representative men and heads of families which somewhat compromises his proposed veil of ignorance, somewhat. Not only that, John Rawls was of the view that equal justice for children could be achieved through paternalistic decision-making that he conceptualised as a sort of substituted judgement procedure (Rawls, 1989).
Each of these efforts, which are only a small account of the multitude of theories of rights, highlight the uneasy place of children within liberal theory.
Towards a more Nuanced Understanding of Autonomy
Earlier, I referred to the historical and social context in which theories of freedom and rights emerged. I would like to again highlight the importance of context in understanding what autonomy or rationality could mean. We can understand context in a number of ways.
Context and Choosing from a Collection of Choices
For Raz, the making of choices may not necessarily secure autonomy unless we have an adequate range of options to choose from and those choices also depended on the general character of our environment and culture (Raz, 1986).
Context and the (Cap)Ability to Choose
Sen argues that the capability for autonomy depends not just on the choices, but on the very capability to make choices, where that capability is a combination of the kinds of functioning (beings and doings) that people can achieve and which range from basic elements such as nutrition and adequate health, to other more complex functionings such as self-respect (Sen, 1985).
Whilst liberal thinking may highlight individual autonomy, Raz and Sen highlight that autonomy only be understood in terms of the kind of connections and relations that people have either with each other and/or with social and political institutions.
Context and the Connection with Others
Minow, in the context of a feminist critique of liberalism, has stated that the liberal conception of rights simply replaced the relationships of authority and subordination of feudalism with those of independence/autonomy and dependence, so that the statuses of dependency and sub-ordination remained in the liberal order and in particular, characterized the legal position of children, women, and persons with disabilities, which had social, economic and political consequences for these groups (Minow, 1986). To counter such a repeat of history, according to Minow, we must develop an understanding of the relationships that are required to ensure autonomy as a means to reconceive our understanding of what liberty means.
The feminist critique of liberalism insists that people are a product of our social context and some of our most essential characteristics, such as our capacity for language and the conceptual framework through which we see the world, are not made by us, but are developed by us, or in us, through our interactions with others. To the extent that the dominant conception of Rights presumes both autonomy and a direct relationship between the individual and the state, Rights for children are even more problematic than rights for adults because their dependence – or lack of autonomy – stems from the reality of their lives where they are dependent upon others as well as the construction of legal rules that often govern that reality with its tendency to favour paternalism rather than liberty (Minow, 1986).
Much of this argument has a strong resonance with recent feminist writings on relational autonomy. According to Nedelsky, to be autonomous a person must feel a sense of her own power (which does not mean power over others), and that feeling is only possible within a structure of relationships conducive to autonomy; thus, social relationships enable the development of autonomy (Nedelsky, 1989).
Context and the Connection with others also opens us up to the need to ensure that the voices of different others are heard. A key part of that process is to ensure that those affected by the process of determining rights and their content are included in the decision-making process not only because it is ultimately more useful to know what is important to whom but also because, as Iris Marion Young contended in the context of her theory of deliberative decision-making, such inclusion serves to legitimate the process itself (Young, 2000).
In difference-centred theories, freedom is understood in terms of the right to participate differently in the social institutions and culture of the society. Lack of freedom is defined in terms of a lack of recognition of the participation and contribution of people of ‘difference’ as a result of their difference from normative assumptions of participation and participants (Moosa-Mitha). This difference-based approach allows us to examine the specific, socio-historical realities that children live in, especially to the extent that such experiences are oppressive. It allows us to recognise the difference between the autonomy of children and the autonomy of adults. It allows us to move away from conceiving of autonomy as solely based on rational decision-making independent of any relationships and to move towards a reconceptualization of autonomy as one that includes children’s ability to influence the multiple relationships that they participate.
Context as Choice, Capability and Connection
Choices made in the here and now are a consequence of the development of the individual’s preferences over time, a development that needs to be understood. On this view, the rational decision-maker does not just materialize to make this choice or that one, neither are choices unfettered by political, social or economic circumstance; rather, choices that are made in response to contexts and surroundings.
I am very appreciative of the potential pitfalls of such an approach because many would argue that context can serve to explain and justify the status quo. Again, we can swing between extremes but we should remember that arguments on both sides of the equation must be moderated by the view that the human rights enterprise is concerned with empowering the disempowered and regulating the exercise of power over all persons in vulnerable positions.
The Child’s Autonomy: A Contest of Choices
The Question of autonomy continues to underpin attempts to formulate specific theories of children’s rights in the latter part of the twentieth century. The Children Liberationists of the 1970s, such as Richard Farson and John Holt, may have infamously argued for the rights of children to vote, to work, to own property, to travel, to choose a guardian, to have an income, to have legal and financial responsibility; as can be imagined, such thinking was controversial. Since then, many attempts have been made to strike a balance between what can be extremely polarized views of freedom and paternalism or substituted decision-making by adults for children.
According Michael Freeman, children have the right to autonomy, not only present autonomy but also the capacity for future autonomy. Freeman draws from Rawls’ version of the social contract and he supports limiting children’s autonomy where the aim is to protect the child and develop her future capacity for self-determination. In this way, Freeman’s concept of ‘liberal paternalism’ – or what he now describes as limited paternalism – seeks to confine paternalism for children without totally eliminating it (Freeman, 1987).
John Eekelaar’s concept of ‘dynamic self-determinism’ is another way of balancing paternalism and autonomy. Not only is the child provided with scope to determine what her best interests are, her scope of decision-making is enhanced by providing her with an extended range of possible outcomes that enhances her capability of choosing between them. The aim of Eekelaar’s formulation is to allow children to make an increasing number of decisions as they grow up, but not allowing them to make a decision which would unduly restrict their life choices when reaching adulthood (Eekelaar, 1994).
David Archard also strives to find a middle way between the liberationist and paternalistic approach to children’s rights; his care-taker approach to children’s rights holds that rights should reflect children’s developing competence, offering them protection as long as they need it combined with empowerment as soon as they are ready for it, with restrictions on their freedom and autonomy only where these can be justified in terms of maximising their future choices (Archard, 2015).
These views reflect the understanding that the autonomy of children and young persons is an evolving process and that the balancing act that is the decision-making around children also takes into account the child’s relationship with others.
These views resonate with what we now know about how children think. Indeed, John Eeekelaar drew from Eric Eriksson’s theory of moral development. More generally, moral development, as an aspect of psychology, allows us to consider how children, in particular, think (Buss, 2009) and how they accommodate cultural norms and proscriptions of society, whether those codes are based on an ethic or autonomy or on a basis of community. A different approach has been advanced which calls calling for childhood to viewed as a social practice rather than as a period or stage of development (Freeman 1998). In this way, sociology of childhood also recognises that children’s experiential knowledge as being a vital aspect of recognizing children’s rights (Mayall, 2000) and it supports the image of children as competent, rational and able to deal with complexity.
Given that we today understand that there are different ways of thinking about autonomy as a political theory, and we know quite a bit more about how children think about their relationships and about rights more generally, we should probably ask ourselves whether the way that we treat children – because we regard their competence as lesser than adults – is really justifiable, from a legal perspective.
Equality, to varying degrees, underpins the above-mentioned political theories that strive to describe our relationships with the State and each other. The narrowness of early conceptions of equality has proven problematic as children were simply not part of the equality equation. The 1970s Child Liberation movement may have argued for children and adults to be treated the same, and such arguments might have been readily refuted but their challenge to the validity of the incapacity argument on ethical grounds is what is important; they regarded it as a form of inequality. The flaw in their argument was that children should be treated the same as adults in the exercise of free choice.
However, we now recognize that this type of approach to equality (formal equality) can in fact perpetuate inequality and negative outcomes, for adults and children alike. In as much as a more nuanced approach to understanding autonomy is useful, a more nuanced approach to understanding what comprises equality is also useful. It is often not enough to enact law and policy that treats everyone the same; Farson and Holt’s call for child equality is a good example of that. Not only could it led to negative outcomes for children, treating everyone the same simply does little to challenge the existing power relationships and hierarchies. A more nuanced approach to achieving equality requires a fundamental re-examination of the structures that perpetuate such inequality (Fredman, 2011).
We now recognize that this type of approach to equality (formal equality) can in fact perpetuate inequality and negative outcomes, for adults and children alike
In terms of human rights law, the right to non-discrimination can be regarded as a tool for the achieving of equality. Law or policy that results in a child – being treated negatively because of a particular characteristic, such as ethnicity or gender, may be regarded as (direct) discrimination, which should be prohibited unless such differentiation can be justified. However, existing power relationships and hierarchies that perpetuate historic and socially based differences or biases may also need to be challenged if they result in structural and systematic discrimination. In terms of children, we do know more about the extent of children’s capacity for decision-making and autonomy and this knowledge should allow us to adjust existing norms to accommodate difference so that equality can also stem from differential but legitimate treatment. In this way, age-based distinctions may come under closer scrutiny.
Age is not enumerated as a prohibited ground of discrimination in the majority of the core UN human rights treaties. However, differential treatment based on age that nullifies or impairs the extent to which individuals enjoy their rights, may be regarded as a violation of the rights to equality and non-discrimination on grounds of other status. The CESCR has, more recently, affirmed that age is a prohibited ground of discrimination in several contexts (CESCR, 2009). The CERD has identified age as being a factor that can contribute to the circumstances of multiple or double discrimination against children or women of a specific group (CESR, 2005). However, age-based discrimination is not an enumerated ground in Article 2. The CRC Committee identified the right to non-discrimination as a General Principle informing the implementation of the provisions of the Convention (CRC, 2003) but there is no mention of age-based discrimination in this context. The CRC has only recently identified age as a basis for discrimination.
So, I think that rights are still right for children. The concepts of Autonomy and rationality still have strong connotations with action that is strongly individualistic and adult-orientated. But we can see that there are other ways of thinking about autonomy and rationality that take account of differences between adults and children. If accounting for difference – and more importantly ensuring that difference does not equate to detriment – lies at the core of the rights to equality and non-discrimination, the next step in the evolution of children’s rights is to ensure that autonomy and rationality are understood more broadly.
- David Archard, Children, Rights and Childhood 3rd ed (Routledge, 2015).
- Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (J.H. Burns & H.L.A. Hart eds) (Methuen, 1970).
- Emily Buss, ‘What the Law Should (and Should Not) Learn from Child Development Research’ (2009) 38(1) Hofstra Law Review, 13-68.
- CRC Committee General Comment No 5: General Measures of Implementation of the Convention on the Rights of the Child (Arts 4, 42 and 44, Para 6) CRC/GC/2003/5 (2003).
- CRC Committee General Comment No 15 on the Rights of the Child to the Enjoyment of the Highest Attainable Standard of Health (Art 24) CRC/C/GC/15 (2013).
- CRC, Joint General Recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices UN Doc CEDAW/C/GC/31/CRC/C/GC/18 (2014).
- CRC Committee General Comment No 20 on the Implementation of the Rights of the Child during Adolescence CRC/C/GC/20 (2016).
- CESCR General Comment No 20: Non-discrimination in Economic, Social and Cultural Rights (Art 2, Para 2 of the International Covenant on Economic, Social and Cultural Rights) E/C.12/GC/20 (2009).
- CERD General Recommendation XXXI on the Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System CERD/C/GC/31/Rev.4 (2005).
- See also CESCR General Comment No 6: The Economic, Social and Cultural Rights of Older Persons E/1996/22 (1996).
- John Eekelaar, The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self‐Determinism’ 8 International Journal of Law and the Family, 42–
- Richard Farson, Birthrights (Macmillan Publishing, 1974).
- Sandra Fredman Discrimination Law (2nd ed, Oxford University Press, Oxford, 2011).
- Michael Freeman, ‘Taking Children’s Rights Seriously’ (1987) 1(4) Children and Society, 299-319.
- Michael Freeman, ‘The Sociology of Childhood and Children’s Rights’ (1998) 6(4) The International Journal of Children’s Rights, 433-444.
- L.A. Hart, The Concept of Law (OUP, 1961).
- Thomas Hobbes, Leviathan; edited with an Introduction by CB Macpherson (Penguin, 1968).
- John C. Holt, Escape from Childhood (EP Dutton, 1974).
- Immanuel Kant, The Metaphysics of Morals (John Ladd trans., The Bobbs-Merrill Co. 1965) (1797),
- John Locke, An Essay Concerning Human Understanding (Kenneth P Winkler, ed.) (Hackett Classics, 1996).
- Berry Mayall, ‘The Sociology of Childhood in Relation to Children’s Rights’ (2000) 8(3) The International Journal of Children’s Rights, 243-259.
- John Stuart Mill, On Liberty, in J. M. Robson (ed.), Collected Works of John Stuart Mill (University of Toronto Press, 1963–1991).
- Martha Minow, ‘Rights for the Next Generation: A Feminist Approach to Children’s Rights’ (1986) 9 Harvard Women’s Law Journal, 1-24.
- Mehmoona Moosa-Mitha, ‘A Difference-Centred Alternative to Theorization of Children’s Citizenship Rights’ (2005) 9(4) Citizenship Studies, 369-388.
- Jennifer Nedelsky, ‘Reconceiving Autonomy: Sources, Thoughts and Possibilities’ (1989) 1(1) Yale Journal of Law and Feminism, 7-36.
- John Rawls, A Theory of Justice Revised Edition (Oxford: Oxford University Press, 1989).
- Joseph Raz, The Morality of Freedom (Clarendon Press, 1988).
- Jean Jacques Rousseau, Emile, or On Education (Allan Bloom, trans.) (Basic Books, 1979).
- Amartya Sen, Commodities and Capabilities (Amsterdam: North Holland, 1985).
- Iris Marion Young, Responsibility for Justice (OUP, 2010).