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

1. Some problems of the legal capacity of
children and some solutions from the
human rights approach
Ignacio Campoy Cervera
“Bartolomé de las Casas” Human Rights Institute
Department of International and Ecclesiastical Law and
Philosophy of Law
Carlos III University of Madrid
Dublin, 29th April 2013

2. Introduction
The problem: Children as persons
marginalized in our contemporary societies
The solution: construct and implement a
system of recognition and protection for the
rights of children, with or without disabilities,
in keeping with the human rights model and
International Human Rights Law

3. Introduction
Analyse the two models currently in force:
“renewed” protectionism, with regard to
children, and the social model of disability, with
regard to disabled people
Present the main considerations which must be
taken into account when developing a system for
the recognition and protection of children’s rights
which would be in keeping with the human rights
model

4. “Renewed” protectionism and the
social model of disability
According to “renewed” protectionism, the child
will only gradually acquire sufficient experience
and maturity of judgement to be able to
determine what their real interests are and how
to satisfy them appropriately
According to the social model, is needed act with
regard to the impairments, but above all in regard
to the social causes, in order to guarantee the full
social inclusion of people with disabilities

5. “Renewed” protectionism and the
social model of disability
According to both
models, children, without, and above all with
disabilities, are people basically characterized
by a special helplessness and by some
deficiencies which, firstly, mean they deserve
special protection and, secondly, prevent
them, in general, from taking decisions on
their lives in the free exercise of their rights

6. “Renewed” protectionism and the
social model of disability
The crucial importance of two fundamental principles:
the protection of the child’s best interests and the
child’s right to participate in all the questions affecting
him or her
The actual interpretation of both principles is not
compatible with the construction of a recognition and
protection system for the rights of children which fits in
with the human rights model, because don’t guarantee
the effective exercise of their legal capacity under the
same conditions as everyone else in society

7. The construction of a human rights model
for children, with or without disabilities
The meaning of the term “the best interests” of the
child – with or without disability- within human
rights discourse must be “attain the free
development of one’s own personality”
The participation of the child in the decision-making
process for all those questions which affect him
or her, means the free exercise of his or her
rights, according to his or her will
The possible conflict between the two principles
places us right in the arena of paternalism

8. The construction of a human rights model
for children, with or without disabilities
Four important ideas for taking a justified
paternalist measure:
1) apply the same justification criteria for any
paternalistic measures regardless of the personal
conditions
2) respect the will expressly manifested by the child
except in justified cases
3) Always respect the “real” will of the child
4) the criteria of age and disability cannot be
general criteria for limiting the capacity to act

9. The construction of a human rights model
for children, with or without disabilities
The application of these ideas would imply the
construction of a system for the rights of
children, with or without disabilities, in line
with the human rights model, where the most
important consideration is the child’s
freedom, like that of any other person, and,
consequently, their legal capacity to exercise
their rights on an equal basis with everyone
else

10. The construction of a human rights model
for children, with or without disabilities
Two general considerations on this system for the
exercise of rights by children, with or without
disability:
1) any limitation to the exercise of their rights
would have to be previously justified
2) when a child does not possess the sufficient
“maturity” required to freely exercise a right, one
must always try to ensure that the exercise of the
right corresponds, as far as possible, with what
we can consider that is the “real” will of the child

11. The construction of a human rights model
for children, with or without disabilities
When 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 after
receiving the necessary support, then the child must be
able to access all these support measures and then be
able to freely exercise his or her right
b) that the child cannot, then the right will be exercised
by a third party qualified to do so, after due
participation by the child and after he or she has
received the necessary support, and always respecting
the “real” will of the child

12. Thank you