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Ignacio Campoy Cervera Some problems of the legal capacity of children and some solutions from the human rights approach
 

Ignacio Campoy Cervera Some problems of the legal capacity of children and some solutions from the human rights approach

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Ignacio Campoy Cervera Some problems of the legal capacity of children and some solutions from the human rights approach

Ignacio Campoy Cervera Some problems of the legal capacity of children and some solutions from the human rights approach

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    Ignacio Campoy Cervera Some problems of the legal capacity of children and some solutions from the human rights approach Ignacio Campoy Cervera Some problems of the legal capacity of children and some solutions from the human rights approach Presentation Transcript

    • Some problems of the legal capacity ofchildren and some solutions from thehuman rights approachIgnacio Campoy Cervera“Bartolomé de las Casas” Human Rights InstituteDepartment of International and Ecclesiastical Law andPhilosophy of LawCarlos III University of MadridDublin, 29th April 2013
    • IntroductionThe problem: Children as personsmarginalized in our contemporary societiesThe solution: construct and implement asystem of recognition and protection for therights of children, with or without disabilities,in keeping with the human rights model andInternational Human Rights Law
    • IntroductionAnalyse the two models currently in force:“renewed” protectionism, with regard tochildren, and the social model of disability, withregard to disabled peoplePresent the main considerations which must betaken into account when developing a system forthe recognition and protection of children’s rightswhich would be in keeping with the human rightsmodel
    • “Renewed” protectionism and thesocial model of disabilityAccording to “renewed” protectionism, the childwill only gradually acquire sufficient experienceand maturity of judgement to be able todetermine what their real interests are and howto satisfy them appropriatelyAccording to the social model, is needed act withregard to the impairments, but above all in regardto the social causes, in order to guarantee the fullsocial inclusion of people with disabilities
    • “Renewed” protectionism and thesocial model of disabilityAccording to bothmodels, children, without, and above all withdisabilities, are people basically characterizedby a special helplessness and by somedeficiencies which, firstly, mean they deservespecial protection and, secondly, preventthem, in general, from taking decisions ontheir lives in the free exercise of their rights
    • “Renewed” protectionism and thesocial model of disabilityThe crucial importance of two fundamental principles:the protection of the child’s best interests and thechild’s right to participate in all the questions affectinghim or herThe actual interpretation of both principles is notcompatible with the construction of a recognition andprotection system for the rights of children which fits inwith the human rights model, because don’t guaranteethe effective exercise of their legal capacity under thesame conditions as everyone else in society
    • The construction of a human rights modelfor children, with or without disabilitiesThe meaning of the term “the best interests” of thechild – with or without disability- within humanrights discourse must be “attain the freedevelopment of one’s own personality”The participation of the child in the decision-makingprocess for all those questions which affect himor her, means the free exercise of his or herrights, according to his or her willThe possible conflict between the two principlesplaces us right in the arena of paternalism
    • The construction of a human rights modelfor children, with or without disabilitiesFour important ideas for taking a justifiedpaternalist measure:1) apply the same justification criteria for anypaternalistic measures regardless of the personalconditions2) respect the will expressly manifested by the childexcept in justified cases3) Always respect the “real” will of the child4) the criteria of age and disability cannot begeneral criteria for limiting the capacity to act
    • The construction of a human rights modelfor children, with or without disabilitiesThe application of these ideas would imply theconstruction of a system for the rights ofchildren, with or without disabilities, in linewith the human rights model, where the mostimportant consideration is the child’sfreedom, like that of any other person, and,consequently, their legal capacity to exercisetheir rights on an equal basis with everyoneelse
    • The construction of a human rights modelfor children, with or without disabilitiesTwo general considerations on this system for theexercise of rights by children, with or withoutdisability:1) any limitation to the exercise of their rightswould have to be previously justified2) when a child does not possess the sufficient“maturity” required to freely exercise a right, onemust always try to ensure that the exercise of theright corresponds, as far as possible, with whatwe can consider that is the “real” will of the child
    • The construction of a human rights modelfor children, with or without disabilitiesWhen a child does not possess the sufficient“maturity” required to freely exercise a right, could be:a) that the child could exercise his or her right afterreceiving the necessary support, then the child must beable to access all these support measures and then beable to freely exercise his or her rightb) that the child cannot, then the right will be exercisedby a third party qualified to do so, after dueparticipation by the child and after he or she hasreceived the necessary support, and always respectingthe “real” will of the child
    • Thank you