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Children are dependent on their parents, fiscally and physically, for a large part of their lives. This system exists because their parents or carers, given their greater age, maturity and life experience, consider themselves more adept at making decisions and providing the child with what they need, than the child would be themselves. Due to this lack of ability to support oneself, children are considered vulnerable. Human rights promote human dignity and protects human vulnerability, it has therefore become the primary tool in protecting children, which the United Nations Convention on the Rights of the Child (UNCRC) brings into International Law. This essay will discuss the extent to which the UNCRC recognises children’s vulnerability through analysing its preamble and articles, and how it responds to this assumption in the provision of special protections. It will also evaluate the debate as to whether children should be considered rights holders, through the narrative of their immaturity and thus inability to exercise agency. This will be done using analysis and opinions of legal commentators, the Convention itself and the comments made by the Committee on the Rights of the Child.
The Inter-American Commission on Human Rights bases children’s vulnerability on ‘their status and inability to secure the protection of their own rights’.1 The United Nations recognises this vulnerability and provides children with protection under its Convention on the Rights of the Child (CRC). In its preamble, it pays homage to this vulnerability in calling for special protections for children and refers back to the Declaration on the Rights of the Child 1924, stating “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.2 The special protection of children and their rights, especially those of particularly vulnerable children, is the core aim of the convention. This purpose can be seen through its articles, for example Article 6, which in its first part reiterates that “that every child has the inherent right to life”.3 In its second part Article 6 requires that “States Parties shall ensure to the maximum extent possible the survival and development of the child”, this acknowledges that children are vulnerable and demands that those responsible for the child, including the state, provide them safety and the ability to grow and mature into a capable adult.4Article 27 recognises that certain social conditions may lower a child’s standard of living, consequently it places a responsibility on adults to protect children from this, and an obligation on the state to help parents to increase these conditions for children such affected. The Convention also recognises a particularly vulnerable group of children in Article 22, child refugees. It provides that such children ‘receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention’.5It’s quite clear therefore that the Convention recognises children’s vulnerability and does its upmost to ensure that states, their industries and the guardians of their children are able and willing to protect the rights and lives of said children.
There is an opinion that a person cannot be considered a rights-holder if they cannot exercise choice over that right. This is described as Will Theory. Since a rights existence is therefore dependent on right-holders interest in choosing, and since many people consider children to lack such competencies to choose, those of this opinion argue they cannot have any rights.6This opinion however denies the intuitive view that children must have rights because it would be morally wrong to argue against such a proposition. Children are after all human, so it makes no sense to deny them human rights. Many proponents of this opinion believe that children of course do have rights but should not be the holders of those rights. O’Neill considers that holding of their own rights has little chance of empowering children.She argues if they are too young, they will be unable to respond to an appeal to their rights, and if they are old enough to respond, they’re already on their way to independence. Her solution to children’s powerlessness’ ‘is to grow up’.7 Fox Harding argues that enabling children to be the sole rights holders would loosen the grip of necessary protection that rights held by their parents would provide. She argues that such a failure to regulate childhood would likely lead to greater exploitation of children, rather than less.8 An interest theory of rights finds that a person has a right where their interests are protected ‘by the imposition of (legal or moral) normative constraints on the acts and activities of other people’. Those most obviously fitted exercise paternalism are parents, since society assumes parents have the best interests of the children at heart. However, this is not always the case. Olsen claims negative paternalism may oppress children just as much as it does some groups of adults.9 The theory is that these ‘best interests’ are at the discretion of the adult
responsible, and sine such interests are founded on welfare rights, they are likely to be paternalistic and not reflect the views of the child. Many commentators consider this a good thing. MacCormick explains that children, due to their immaturity, do not always know what is good for them, citing the right to discipline and a safe environment as examples which children regularly perceive as being the reverse of rights or advantages.10 Nevertheless, it is important that a balance is found between respecting capable children’s rights to choose, and holding the power to override choice understanding that some children may be too immature to make the best decision for themselves. The case for evolving capacity can provide a solution to this problem.
The Committee on the Rights of the Child defines evolving capacities as ‘an enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding and increasing levels of agency to take responsibility and exercise their rights’.11 It follows therefore that a child may begin life ‘immature’ and unable to ‘exercise agency’, but becomes no longer so burdened and vulnerable as he develops. The Convention provides for this position by guaranteeing the right to be heard, to challenge rights violations and to seek redress, through which children can progressively exercise agency.12 Article 12 of the Convention refers to a child’s rights to express his views on matters affecting him. The Committee in General Comment 12 regarding this article states a child’s views should be given due weight on a case-by-case analysis of their capacity to form their own views. It follows that if the child can do so in a ‘reasonable and independent manner’, the child’s views must be considered a ‘significant factor’.13The Convention recognises that children will acquire competencies at different ages and to varying degrees depending on their environments and cultures.14 Children, as a result, will benefit from varying levels of protection and participation. Article 5 provides that the state must respect the rights of parents and caregivers to give ‘appropriate direction and guidance’ to the child when the child wishes to exercise their rights and follows that this advice should be consistent with the ‘evolving capacities of the child’.15 The word ‘appropriate’ protects children from parents or carers that provide unsuitable guidance or provide non-at all.
The Convention recognises that children should be allowed to contribute to decisions, in Article 12, whilst accepting the paternalist view that children’s best interests need to be sought after on their behalf, in Article 3.16In this regard the convention can be given credit for recognising the importance of children’s opinions on matters that concern them and ‘the dangers of wrapping them in silence’, but at the same time, that children lacking maturity and experience will not always make the best decisions for themselves.
In conclusion, the UNCRC does well to recognise children’s vulnerability and dependency upon adults in the earlier stages of their lives. It recognises that such vulnerability is open to abuse and so provides special protection for children in states partnered to the convention. This protection is provided in International Law, but often less reliably in states domestic law depending on the extent to which they have incorporated the convention. The argument follows from this assumption of vulnerability and dependency that children can’t exercise agency out of immaturity. It can be concluded that neither children nor adults should be the sole holders of children rights. Children are indeed often too immature, and adults do not always act in the interest of the child. Evolving capacity, supported by the UNCRC and its Committee, provides us with the best method of determining where to draw this line, with its case-by-case competency and capacity analysis. However, it too suffers from a lack of determination given that there is difficulty in defining these characteristics.
The UK has not incorporated the UNCRC into international law, therefore as a signed and ratified state, the UK is obligated to implement the Convention through domestic legislative and other judicial mechanisms. Article 4 states “all parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights” in the convention. In 2011 Wales incorporated children’s rights through introducing the Rights of Children and Young Persons (Wales) Measure 2011, however it cannot incorporate the convention as this is beyond the powers of devolution. This essay will evaluate the extent to which the United Kingdom has given legal effect to the UNCRC with specific regard to the general principles set out by the Committee on the Rights of the Child. It will look at significant children’s rights statute in the UK, implementations made by the government to promote children’s rights and finally judicial decisions, in discerning whether ‘full legal effect’ has been given to the UNCRC or the Committee’s principles.
The Committee on the Rights of the Child, in its General Comment 5, set out its general measures of implementation of the convention.1 It states that the development of a children’s rights perspective must be developed though out government, parliament and the judiciary in order for the effective implementation of the whole convention.It sets out the method for this development through establishing its general principles.2 The first principle, ‘the obligation of States to respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind’, is found in Article 2.3 It requiresStates to identify children and groups of children and aid them where measures are demand to realise their rights. The second principle, ‘the best interests of the child as a primary consideration in all actions concerning children’, is found in Article 3(1).4 This principle applies to all sections of the state including government and legislative authorities. The third principle is, ‘the child’s inherent right to life and States parties’ obligation to ensure to the maximum extent possible the survival and development of the child’, found in Article 6.5 The committee requires states to interpret “development” in its broadest sense possible.The final principle is found in Article 12, the child’s right to express his or her views freely in “all matters affecting the child”, those views being given due weight’.6 This emphasises the role of the child as a participant in the ‘promotion, protection and monitoring’ of their rights.
The most significant piece of legislation dealing with welfare in the UK is the Children Act 1989. Section 1 of the act regards children’s welfare as of paramount consideration, with regards to the upbringing children or the administration of their property or income from arising from the child.7 This section reflects the second general principle, of the child’s best interest. The welfare of the child is given sufficient importance with regards to other issues. However, firstly, the section is concerned with the welfare of the child and not their best interest. The child’s welfare is determined by an adult, who may not pay attention to the needs and interests of the particular child, he’s therefore unlikely to act in the real nuanced best interests of the child. Secondly, it is only concerned with children in court, when deliberating over very specific issues. This is not encompassing enough to fulfil the principle which requires the best interests be considered in ‘all actions concerning children’.
Section 3(a) of the act requires the court to have regard to the wishes and feelings of the child concerned, having consideration to his age and understanding.8 This seems to reflect the fourth principle, taking into account the view of the child. It also appears to have consideration to the Committees principle of evolving capacity, given the consideration to age and capacity to understand.9However, the issue remains that this right only applies to children being dealt with in court, and doesn’t apply to the general workings of government. Children lose out her significantly given that they cannot vote to influence public policy.
Section 3(b) regards the ‘physical, emotional and educational needs of the child’. 10The third principle might be engaged here to some extent given how these factors contribute to development. They are quite non-specific however, apart from arguably education. Section 3(c) concerns any likely effect a change in his circumstances may have on him.11 This may begin to satisfy the first principle of non-discrimination, in ensuring a child will not be left disadvantaged, however, the principle concerns equal access to a right, of which any change in circumstances is unlikely to have significant effect.
It would appear therefore that the Children Act 1989 fails to give full legal effect to the convention on the rights of the child, given its lack of compliance with the established general principles.
In 2004 under the new Children Act, England established a Children’s Commissioner to promote children’s rights.12The role of the Commissioner is to promote awareness of the views and interests of children. This provides children with a voice, satisfying the right to express views, however the role doesn’t specifically call for ‘best’ interests of the child to be considered, thus not satisfying article 3(1). The Rights of Children and Young Persons (Wales) Measure 2011 creates a Children’s Commissioner with a greater scope than in England. Section 22 requires that the commissioner “must have regard to the UNCRC in everything he does”.13 This is far more significant and has greater regard for the UNCRC.
The Human Rights Act 1998 (HRA) was created to incorporate the European Convention on Human Rights (ECHR). Section 2 of the act requires that when a court deals with a question engaging the ECHR, then it must take account of judgements, decisions, declarations or opinions of the ECHR, the Commission and the Committee.14 Section 3 requires domestic legislation to be read and given effect to compatibly with the ECHR, and the UNCRC is influential in decision making under the ECHR.15 If legislation in the UK is insufficient to satisfy Article 4 and the general principles, perhaps the UNCRC has been adequately implemented though judicial practice using the HRA and the ECHR.
The case of Mabon v Mabon (2005) was a custody case concerning the three oldest children of a couple.16 The three boys aged 13, 15 and 17 wanted separate representation from their appointed ‘guardian’. Their claim was initially denied and on appeal, it was allowed. The court reached its conclusion, in part, due to having taken into account Article 12 UNCRC. The court recognised that in guardianship proceedings, the guardian’s duty was to represent the welfare of the children, and that this was not always going to be consistent with the children’s feelings or views. This demonstrates a willingness for the courts to step away from welfare principles and into the protection of children’s rights, following the principle of a child’s right to express their views and putting greater emphasis on the autonomy of the children. The case suggests the UNCRC has real influence in UK courts, and that the Commissions general principles too hold weight.
The case of Re P-S (Children), a later case to Mabon, suggests another story. The case concerned CA 1989, Section 96, that a child’s evidence might be heard by the court.17 The court interpreted Article 12 UNCRC to mean a child’s voice does not have to be heard directly in court proceedings. Such a scenario should only apply when it is in the best interests of the child. The court used this to prevent the child from talking to the court directly. Here the court has used the convention to come to a conclusion that does not follow the convention aims. It explicitly fails to comply with the general principle of right to express views freely, and the principle of best interest.
The case of R (on the application of SG) concerned that the secretary of state was bound by Section 6 of the HRA, to treat the best interests of the child as a primary consideration when making regulations.18 This was to be done in accordance with Article 3(1) UNCRC because the case concerned a benefits cap which affected the private and family life of the individuals involved which concerned Article 8(1), and consequently too, the UNCRC. The divisional court and the court of appeal concluded that the government had complied with the ‘best interests’ obligation. Its contention was that “reversing the impact of benefit dependency” would benefit children in the future. But this judgement is to omit an aspect of Article 3(1), that first consideration is to be given not only to children in general, but also of the particular children affected. Lady Hale in her dissenting judgement was not convinced that the best interests of the children affected by the cap had been given primary consideration.19 It seems quite clear now that she was correct. Lady Hale also referred to other obligations beyond the ‘best interest’s’ principle. She brought in Article 27(1) UNCRC which “recognises the right to every child to a standard of living”20. It is clear that this wasn’t given much consideration either as a cap on benefits can only negatively affect a child in question. This therefore fails to satisfy the Principle of the right to development, given that opportunity is restricted with those in poverty.
In conclusion, the Children Act 1989 provides some degree of rights to children, yet by no means the same coverage of rights as UNCRC, nor coverage of children. The general principles set out by the Commission have been, at best, marginally satisfied by sections 1 and 3. The Children’s Commissioner in England appears to promote welfare rights, rather than human rights, in failing to require the ‘best’ interests of the child, however the Welsh Commissioner, in being tied to the UNCRC, has a much more encompassing and effective role in the implementation of the UNCRC. The gap in litigation due to the UK’s piecemeal approach to implementation does not appear to be mitigated by judicial practice. Courts consistently over look their obligations to take account of the UNCRC.
- – Alexander H. E. Morawa, ‘Vulnerability as a Concept of International Human Rights Law’ (2003), p.14
- UNCRC, Preamble
- UNCRC, Article 6 (1)
- UNCRC Article 6(2)
- UNCRC Article 22
- Jane Fortin, ‘Theoretical Perspectives’, in Children’s Rights and Developing Law (Cambridge University Press 2009) 12
- Onora O’Neill, (1992) ‘Children’s Rights and Children’s Lives’ in Alston, P., Parker, S. and Seymour, J. (eds.) Children, Rights and the Law, (Clarendon Press 1992) (14)
- Lorraine Fox Harding, (1997) Perspectives in Child Care Policy, (Longman 2002) (p.134)
- – Frances Olsen, ‘Children’s Rights: Some Feminist Approaches to the United Nations Convention on the Rights of the Child’ (1992) 6(1) Int’l JL & Fam 192
- Neil MacCormick, Legal Right and Social Democracy: Essays in Legal and Political Philosophy, (Clarendon Press 1982) (166)
- – CRC/C/GC/20 (para 18)
- – CRC/C/GC/20 (para 19)
- CRC/c/GC/12 (44)
- UNCRC Article 5
- UNCRC Article 3
- CRC/C/GC/5 (2)
- CRC/C/GC/5 (12)
- Article 3 UNCRC
- UNCRC Article 6
- UNCRC Article 12
- CA 1989 s, 1
- CA 1989 s, 3A
- – CRC/C/GC/20 (para 18)
- CA 1989 s, 3(b)
- CA 1989 s, 3(c )
- CA 2006 s, 1
- Rights of Children and Young Persons (Wales) Measure 2011 s, 2
- HRA 1998 s, 2
- HRA 1998 s, 3
- Mabon v Mabon  EWCA Civ 634
- – Re P-S (Children)  EWCA Civ 223
- R (on the application of SG and others (previously JS and others))(Appellants) v Secretary of State for Work and Pensions (Respondent)  UKSC 16
- R (on the application of SG and others (previously JS and others))(Appellants) v Secretary of State for Work and Pensions (Respondent)  UKSC 16 [226)
- R (on the application of SG and others (previously JS and others))(Appellants) v Secretary of State for Work and Pensions (Respondent)  UKSC 16 
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