2. The following points are interpretations of key points
as raised by John Eeekelar’s, The Emergence of
Children’s Rights.
(Oxford Journal of Legal Studies, Vol. 6., (Summer, 1986),No. 2, pp. 161-182)
3. A Definition of Legal Rights
A law creates a right if it is based
on and expresses the view that
someone has an interest which is
sufficient ground for holding another
to be subject to a duty; and,
again, that to be a rule, conferring a
right it has to be motivated by a
belief in the fact that someone's
interest should be protected by the
imposition of duties on others.
(Joseph Raz, 1984)
4. Early law viewed children primarily as
agents for the devolution of property
5. Hall v. Hollaender (1825)
The case found that
injury to a child of two
would not justify
compensation
because the child so
young was manifestly
unable to perform any
services for the father.
12. The first Prevention of Cruelty to and the
Protection of Children Act 1889
Created an offence if anyone
over 16 who had custody,
control or charge of a boy
under 14 or a girl under 16
wilfully ill treated, neglected or
abandoned the child in a
manner likely to cause
unnecessary suffering or injury
to its health.
13. To guess what a child might retrospectively have
wanted once it reaches a position of maturity?
14. “Could a child plausibly claim
that he should be given a better
chance than other children?”
15. The problem is that a child's autonomy
interest may conflict with their
developmental interest and even their
basic interest.
Basic
Interest
Developmental
Interest
Autonomy
Interest
16. S.1 The Children and Young Persons Act
1969
“his proper developmentis being avoidably prevented or neglected or
his health is being avoidably impaired or neglected or he is being
ill-treated;
... and also that he is in need of care and control which he is unlikely to receive
unless the court makes an order under this section . . . the court may if it thinks
fit make such an order.”
21. Gillick v West
Norfolk and
Wisbech Area
Health Authority
[1985] (1985) 3 All
ER 402 (HL).
22. "children will now have, in
wider measures than ever
before, that most
dangerous but most
precious of rights: the
right to make their own
mistakes”.
John Eekelaar, 1986, The Emergence
of Children’s Rights p. 192
Editor's Notes
0 Joseph Raz (1984) has argued that a law creates a right if it is based on and expresses the view that someone has an interest which is sufficient ground for holding another to be subject to a duty;: and, again, that it be a rule, fearing a right it has to be motivated by a belief in the fact that someone's interest should be protected by the imposition of duties on others.
2. Not surprisingly, early law viewed children primarily as agents for the devolution of property within an organised family setting.
3. When considering injury to a child, the law did not consider the actual injury as experienced by the child, rather it considered losses experienced by the father as a result of their child being injured. Hence, an injured child could no longer perform services for the father. The case of Hall v. Hollaender (1825) found that injury to a child of two would not justify compensation because the child so young was manifestly unable to perform any services for the father.
4. The common law failed to create any legal duty parents support their children. The children had interest to receive such support was obvious, but the law, both religious and secular, it seems, was content to rely on the natural moral sense of parents to fulfil it.
Five. Equal argues that there is a strong coincidence between the introduction of a legal enforcement of parental support obligations and the growth of mass unemployment and Labour mobility characterised by the Industrial Revolution in the 16th century. prior to the Industrial Revolution there was commonly held assumption that support and economic benefits would be shared within an amongst family. This created a social stability and order which was seriously threatened in the industrial revolution period.
6. Eekelaar argues that around this period the law also sought to protect other people from the burden that a father’s uncared for children might place on them. Hence injuries to the children were injuries to the father; that their interests might conflict with his was perceived, but protection was given only where his failure to regard their interests sufficiently threatened other people.
Seven. yellow legislation controlling the employment of children in factories and mines was conspicuously motivated by a wish to protect the interests of children. These controls will not however conceived (as they might be today) is operating against the children's own claims to independence, but against the interests of the parents to profit from their children's labour as much as of the employers.
Eight. Unless he seriously threatened the child's well-being, the father's rights were paramount.
Nine. In re Aagar-Ellis (1883) It was stated that "when by birth a child is subject to a father, it is for the general interest of families, and for the general interest of children, and really for the interest of the particular infant, that the court should not, except in very extreme cases, interfere with the discretion of the father leave him to the responsibility of exercising that power which nature has given him by birth of the child".
10. In 1889, the first Prevention of Cruelty to and the Protection of Children Act 1889, created an offence if anyone over 16 who had custody, control or charge of a boy under 14 or a girl under 16 wilfully ill treated, neglected or abandoned the child in a manner likely to cause unnecessary suffering or injury to its health.
11. Again on page 170, Eekelaar puts forward his theory of developmental rights: "it is necessary therefore to make some kind of imaginatively and guess what a child might retrospectively have wanted once it reaches a position of maturity. In doing this, values of the adult world and of individual adults will inevitably enter. This is not to be deplored, but openly accepted. It encourages debate about these values.
12. Eekelaar builds on previous arguments that within this certain overriding constraints created by the economic and social structure of society, all children should have an equal opportunity to maximise resources available to them during their childhood (including their own inherent abilities) so as to minimise the degree to which they enter adult life affected by avoidable prejudices incurred during childhood. Eekelaar raises the debate that, could a child plausibly claim that he should be given a better chance than other children, for example, by exploitation of his superior talents or a favourite social position as an expectation address to the child's parents, such a claim might have some weight. The child of rich parents might retrospectively feel aggrieved if those resources were not used to provide him with a better chance in life than other children.
13. equal points out that children may also have will type interests which he refers to as autonomy interests. A child may argue for the freedom to choose his own lifestyle and is entered into social relations according to his own inclinations and controlled by the authority of the adult world, whether parents or institutions. Claims of this kind of been put forward on behalf of children by Holt and by Farsen. Freeman has argued that such interests might be abridged into father children also have a right to be protected against their own inclinations if their satisfaction would rob them of the opportunity "to mature to a rationally autonomous adult hold… Capable of deciding on their own desires as free and rational beings.
14. Section 1 of the children and Young Persons act 1969 permits state intervention if a child is "proper development is being avoidable it prevented or neglected or his health is being avoidable impaired or neglected or he's been ill treated and he is in need of care and control which he is unlikely to receive unless the court makes an order”. Here we can see, embryonic manifestations of types of wording used in the children act 1989.
15. Although the duty at this point, is imposed primarily on the child's parents, that is to promote the interests of their children it also extends to the state, because local authorities are under a duty to enquire into the information suggesting breaches of the duties and to bring enforcement proceedings if they reasonably believe that grounds exist for making an order. The term a ‘avoidably’ allows for flexibility in application of the standard to take into account unavoidable effects of social inequality.
The imposition of these duties is primarily perceived by the enforcement agencies as directed as advancing the interests of the rights holders, the rights holders in this case being children, (see Raz’s earlier formulation of rights and duties). Eekelaar states this represents a total reversal of earlier characterisations of the child parent relationship.
16. On page 173 Eekelaar makes the point that, however we may justify it, the developmental interest for the vast majority of children is not protected as a right, but owes its satisfaction to the natural workings of the Children Act 1989, and the United Nations Convention on the rights of the Child 1989, the developmental rights of children were sparsely defined, save for in the area of educational law and medical law. The satisfaction of these rights was left up to families to sort out as they saw fit.
17. The principle that the child's welfare is the "first and paramount" consideration when determining custody disputes was given statutory form for the first time in the guardianship of infants act 1925. Maidment, argues that the enshrinement of the paramounty principle was more to do with staving off feminist demands for equality of parental rights, rather than elevating the child's welfare per se.
18. this paramount principle continues to be dominant and is expressed in private family law legislation and also publicly applicable legislation such as the children act 1989.
19. the exercise of autonomy by children come conflicts not only with the child's own basic and developmental and interest, but also with the interests of the child's parents. the Gillick case serves as a perfect example. It had long been held that a child under 16 could not give valid consent for any act against it, which would constitute an assault. the issue in Gillick was whether or not Dr was legally bound to inform parents, if the doctor was to provide contraceptive treatments to a person under 16. Progressing all the way to the House of Lords, this case held that if it was deemed a child had sufficient understanding and awareness of the consequences involved in the treatment, the doctor was not legally required to inform the parents. This gave rise to the concept of Gillick competence. there were significant disagreement between the law lords deciding the Gillick case. The most wide-ranging expansive, application the principle of autonomy rights was set out by Lord Scarman. As equal points out the significance of Lord Scarman's opinion with respect to children's autonomy interests cannot be overrated. Lord Scarman proposed that when a child reaches a level of maturity to understand, and reason the consequences of actions, the rights of the parents yield to the autonomy rights of the child. Although Lord Fraser appeared to want to limit the scope the Gillick application limiting it to medical/contraceptive contexts only
Hence from Lord Scarman's reasoning it holds that where a child has reached capacity, there is no room for a parent to impose a contrary view, even if this is more in accord with the child's best interests. Determining capacity, is no simple matter. The child must not only understand the nature of the circumstances they are involved in, but also be able to evaluate future options and further implications stemming from decisions and actions made today.
In summary of the 1985 Gillick decision Eekelaar concludes, "children will now have, in wider measured than ever before, that most dangerous but most precious of rights: the right to make their own mistakes”.
