Pulkit Singh Rahangdale

CHILDRENS
RIGHTS
2011-BA LLB
(Hons.)- 06
Philosophical Consideration into the
Morality of the Rights of Children

Children's Rights

Children are young human beings. As human beings children evidently have a certain
moral status. There are things that should not be done to them for the simple reason
that they are human. At the same time children are different from adult human beings
and it seems reasonable to think that there are things children may not do that adults
are permitted to do. In the majority of jurisdictions, for instance, children are not
allowed to vote, to marry, to buy alcohol, to have sex, or to engage in paid
employment.
What makes children a special case for philosophical consideration is this
combination of their humanity and their youth. One very obvious way in which the
question of what children are entitled to do or to be or to have is raised is by asking,
Do children have rights? If so, do they have all the rights that adults have and do they
have rights that adults do not have? If they do not have rights how do we ensure that
they are treated in the morally right way?
Most jurisdictions accord children legal rights. Most countriesincluding the
Republic Of Indiahave ratified the United Nations Convention on the Rights of the
Child which was first adopted in 1989. The Convention accords to children a wide
range of rights including, most centrally, the right to have their best interests be a
primary consideration in all actions concerning them (Article 3), the inherent right
to life (Article 6), and the right of a child who is capable of forming his or her own
views to express these views freely in all matters affecting the child (Article 12).
However it is normal to distinguish between positive rights, those that are
recognised in law, and moral rights, those that are recognised by some moral theory.
That children have positive rights does not then settle the question of whether they
do or should have moral rights. Indeed the idea of children as rights holders has been
subject to different kinds of philosophical criticism. At the same time there has been
philosophical consideration of what kinds of rights children have if they do have any
rights at all. The various debates shed light on both the nature and value of rights, and
on the moral status of children.
India is party to the Convention on the Rights of the Child (CRC) India has ratified
the Rome Statute of the International Criminal Court (ICC) and is state party to
International Labour Organization (ILO) Convention on the Worst Forms of Child
Labour. Several regions in India are experiencing armed conflicts between state
armed forces and armed opposition groups. Because of the risk of childrens
involvement in hostilities and consequential violation of their rights, this research
paper also seeks to conduct a jurisprudential inquiry so as to ascertain what rights do
children have?

Hypothesis

The principle underlying assumption of the research shall be that children possess
equal rights as an adult being, meaning thereby that the idea of children as rightsholders has been subject to different kinds of philosophical criticism. On the one
hand, one genre of consideration says that children have limited rights, or no rights at
all. At the same time there has been philosophical consideration of what kinds of
rights children have if they do have any rights at all.

Statement of Problem

The chief objective of the paper shall be to understand the philosophical

considerations behind the morality on the rights of a child. Questions as to What is it
for someone to have a right? Ought children to have rights? If children can have at
least some rights, what rights should they have? How is it with the child's right to be
heard? Why should a child have to display a competence? Also spring up during the
course of the study.

Research Question

The research seeks to analyse a wider rights-perspective in relation to Children, thus

questions as to: What is it for someone to have a right? Ought children to have
rights? If children can have at least some rights, what rights should they have? Ought
they not then to have the basic rights that humans have? How is it with the child's
right to be heard? Why should a child have to display a competence? Also spring up
during the course of the study.

Structure of Project

1. Children and Rights...................................................4

2. Critics of Children's Rights.........................................6
2

3. Liberationism.............................................................8
4. Children's Rights and Adult Rights.............................9
5. The Child's Right to Grow Up...................................10
6. Best Interests..........................................................11
7. The Right to be Heard.............................................13
Conclusion...................................................................15
Bibliography................................................................16
References Cited.......................................................16
Review of Literature..................................................17

1. Children and Rights

Article 1 of the United Nations Convention defines a child as any human being below
the age of eighteen years unless, it adds, under the law applicable to the child,
majority is attained earlier (United Nations 1989). In what follows this definition
will be assumed. Some think it obvious that children do have rights and believe that
the only interesting question is whether children possess all and only those rights
which adults possess. Others are sceptical believing that given the nature both of
rights and of children it is wrong to think of children as right-holders.
One background worry against which such scepticism may be set is a currently oftexpressed concern at the proliferation of rights. First, the list of right-holders has
been extensively lengthened. Second, many more demands are expressed as rights
claims. This thought must trouble the defenders of children's rights since, after all,
talk of children having rights has post-dated the introduction and general acceptance
of rights as such. There are, however, more particular reasons for being suspicious of
the idea that children have rights. To appreciate these it is necessary to be clearer
about the language of rights. With respect to rights in general we can inquire as to
what it is for someone to have a right, or, put another way, we can ask what being a
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right-holder consists in. There are here two competing accounts, one of which is seen
as fatal to the idea of children as right-holders. We can ask a different question,
namely what must be true for there to be rights. That is, we can try to specify what
have been called the existence conditions for rights 1. Finally we can ask what the
moral significance of having a right is, or what weight rights have. Some for instance
have viewed rights as being absolute such that the fact of a person's possession of a
right is sufficient to outweigh or discount all other moral considerations2.
What is it for someone to have a right? Here there are two competing theories whose
respective virtues and vices have been extensively debated without either gaining
evident or agreed supremacy. In one camp is the will or choice theory 3; in the
opposing camp is the welfare or interest theory 4. The first theory sees a right as the
protected exercise of choice. In particular to have a right is to have the power to
enforce or waive the duty of which the right is the correlative. What it means, on this
theory, for me to have the right to education is for me to have the option of enforcing
the duty of some other person or persons to provide me with an education, or to
discharge them from the responsibility of doing so. The second theory sees a right as
the protection of an interest of sufficient importance to impose on others certain
duties whose discharge allows the right-holder to enjoy the interest in question. What
it means, on this theory, to have a right to education is for me to have an interest in
being educated which is so important that others are under an enforceable duty to
provide me with an education.
The will and the interest theory is each alleged to have failings. But interestingly in
this present context one defect of the will theory is its exclusion of some humans
from the category of right-holders. This is because whilst all humans, and perhaps
many classes of non-humans such as animals, have interests that ought to be
protected, not all humans have the capacity to exercise choice. Childrenalong with
the severely mentally disabled and the comatosecannot thus, on the will theory, be
the holders of rights.
For at least one prominent defender of the interest theory, the fact that children
evidently do have rights is sufficient to display the falsity of the will theory, thus
making children a test-case for the latter5. Obviously different claims are being
1 Sumner 1987, 1011
2 Nozick 1974
3 Hart 1973; Sumner 1987; Steiner 1994
4 MacCormick 1982; Raz 1984; Kramer 1998
5 MacCormick 1982
4

made and the same claims are playing distinct roles in different arguments. The
claims in question can be set out as follows:
1. Rights are protected choices
2. Only those capable of exercising choices can be right-holders
3. Children are incapable of exercising choice
4. Children are not right-holders
5. Adults have duties to protect the important interests of children
6. Rights and duties are correlative
7. Children are right-holders
To explain (6). An important claim held by many is that for each and every right there
is a correlative duty. To say that I have a right to something is to say that someone
else has a duty to me in respect of that thing. The correlate rights and duties are, as it
were, simply the two sides of one and the same single coin. This of course does not
mean that there may not be some kinds of duties which do not correlate with any
rights. Indeed some critics of children's rights will concede that adults have duties to
protect important interests of children but deny that these interests correlate with
rights held by children.
Should those empowered to act as representatives be those who are most likely to
choose as the children would choose if capable, or are there are other independent
grounds on which they are selectedsuch, as most obviously, that they are the child's
parents? Think of the representation of children as like a trust. The children entrust
their decision-making to their representatives who are thus their trustees. Now,
second, are the terms of the trust sufficiently clear and determinate? Is it, for instance,
perspicuous and evident what a child would choose if capable of choosing? Note that
the criterion is not what is in the best interests of the child for, consistent with the will
theory, we must appeal to choices rather than interests. It is not easy to say what some
adult who cannot currently choosebecause she is, for instance, temporarily
comatosewould choose if able. It is even harder in the case of someone, a child,
who is for the period of childhood simply incapable of making any choices. Third,
how is the trust to be enforced and by whom? The representative may be presumed to
have a duty to choose as the child would choose if able. If rights are correlative with
duties then someone other than the representative and the child must be in a position
to enforce or waive this duty. Could this be the state or its representative?
This review of the will and interest theory has not considered other reasons
independent of the implications of either theory for the question of whether or not
children have rightsfor favouring either theory. It has simply examined the issue of
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whether the denial of children's rights can be thought of as a test case for the probity
of the will theory. Of course even if it is not such a test case there may be other
considerations that tell against the will theory and in favour of the interest theory. Or
it may be that on balance the interest theory is preferable to the will theory whether or
not the latter denies rights to children.
2. Critics of Children's Rights

We may now address the further questions: Ought children to have rights? And, if so,
what rights should they have? Note that the rights can be moral or legal. Children do
have rights in law (under the UN Convention most notably). These need not be
accepted as moral rights. However someone could believe that the best way, on
balance, to protect the interests of children is by continuing to accord them the legal
rights they have under something like the Convention. Someone might also believe
that children should have legal rights but not those they are currently accorded.
Conversely, if children do have moral rights, these need not be enshrined in law,
although there would evidently be a strong presumption that they should. In the first
instance the question is whether children should have moral rights. If they should
then there would be a good case for thinking that these should be legally protected
rights.
Should children have rights? There are those who claim that children should have all
the rights that adults presently have. These are called liberationists and include Holt,
Farson and Cohen6. We can distinguish real from rhetorical liberationists. The latter
are those who see the demand for equal rights for children as a means both of
drawing attention to the discrimination that children suffer by comparison with adults
in their treatment and for improving their condition. A rhetorical liberationist does not
actually believe that children should be the equals of adults. Rather he thinks that
claiming as much is the best way of advancing their interests. A real liberationist does
view children as the equals of adults. Their case will be considered in due course.
Then there are those who think that children should have some but not all of the
rights which adults have.
Finally there are those who think that children should not have any rights. They are
sceptical, for theoretical and political reasons, about attributing rights to children.
Their case is made in three ways. The first is to assert what liberationists deny,
namely that children are not qualified as adults are to have rights. The second is to
argue that the ascription of rights to children is inappropriate because it displays a
misunderstanding of what childhood is, what children are like, or what relationships
children stand in to adults. The third is to argue that, notwithstanding their lack of
rights, children can be assured of adequate moral protection by other means.

6 Farson 1974; Holt 1975; Cohen 1980

6

Children in general lack certain cognitive abilitiesto acquire and to process

information in an ordered fashion, to form consistent and stable beliefs, to appreciate
the significance of options and their consequences. They also lack certain volitional
abilitiesto form, retain and act in the light of consistent desires, to make
independent choices. Children are not unique amongst humans in this respect. Those
adults who are seriously mentally impaired are also disqualified in this sense. Which
is of course just to say that these adults are childlike.
Perhaps then we can agree that we are all under a duty to prevent the abuse of
children. But clearly we cannot, as individuals, each act to stop every child being
abused. Moreover what we ought to dofor instance, by reporting suspected cases of
abusewill depend on the circumstances, and also on what is in place by way of
particular institutions and laws to deal with child abuse.
Granting children the liberty to exercise rights is destructive of the preconditions for
the possibility of having fulfilling adult lives. The central, and empirical, premise in
this argument is that children do not spontaneously and naturally grow into adults.
They need to be nurtured, supported, and, more particularly, subjected to control and
discipline. Without that context giving children the rights that adults have is bad for
the children. It is also bad for the adults they will turn into, and for the society we
share as adults and children.
The defence of the view that children should not, as the liberationist asserts, have all
the rights that adults have has involved the following assertions. First, that children
simply lack the capacities that qualify adults for the possession of rights. Second, that
talk of children's rights does not capture the truth about their lives or about the family
or that such talk encourages a destructive permissiveness that has poor consequences
for adults and their society. The third step in defence of the denial of rights to
children is to provide reassurance that such a denial is not bad for children.
One can thus maintain that rights do not exhaust the moral domain. There are things
we ought to do which do not correspond to the obligations we have as the correlates
of rights. As adults we should protect and promote the welfare of children. It need not
follow that they have rights against us. To repeat, humans should not maltreat animals
for no good reason but we can insist on this without giving animals rights.
3. Liberationism

The first claim in the defence of the denial of rights to children is that children are
disqualified by virtue of their incapacity to have rights. Liberationists dispute this.
Liberationists can allow that the key to the appropriateness of giving or not giving
rights to children turns on capacity7. They will argue, however, that children are not

7 Cohen 1980 ix
7

disqualified from having rights by virtue of their lack of a capacity that adults do
have.
There are two respects in which this liberationist case might be modified or qualified.
The first is in its scope. The liberationist might claim that all children are qualified to
have rights, or she might claim only that some children are so qualified. The latter is
the more plausible position in view of the fact that the very young infant is evidently
incapacitated. Indeed some liberationists seem to recognise as much even whilst they
insist that every child should have rights 8. If the scope of the liberationist claim is
thus limited it does not amount to the view that no line dividing human rights holders
from humans who lack rights should be drawn. Rather it is the view that such a line
has been drawn in the wrong place.
A second possible qualification of the liberationist view is that giving rights to
children will play an important part in their acquiring the qualifying capacity. It is not
thus argued that children are capable now and are illegitimately denied their rights. It
is rather that they will only acquire that capacity if given their rights. The denial of
rights to children is, on this account, one significant element in a culture that serves
artificially to maintain children in their childlike state of dependence, vulnerability,
and immaturity. Again the qualification can concede that children of a very young age
are not capable enough to have rights, and will not acquire that capacity even if given
rights. Yet it insists that the denial of rights to children of a certain age on account of
their alleged incapacity is simply self-confirming. They cannot have rights because
they are incapable but they are incapable only because they do not have these rights.
Note that this seems most plausible when rights are legal. Children should be allowed
at law to behave in ways that encourage their development into mature rights-holders.
There are different ways in which the liberationist claim about capacitywhether
qualified or notcan be made. One is by defending a thin definition of capacity.
For example it may be said that children can make choices if what this means is
expressing preferences. A child who says she wants x thereby chooses x. Of course
the response is that the ability to choose, thus minimally defined, is indeed possessed
by children (even fairly young children) but it is not a capacity sufficient to qualify
for rights ownership. What is needed for that is more than simply the ability to
express or communicate a desire; what is needed is an ability to understand and
appreciate the significance of the options facing one, together with independence of
choice. After all the animal who moves from one feeding bowl to another may be
said thereby to choose the food in the latter bowl. But the animal does not have a
general capacity of choice sufficient to qualify it as a holder of liberty rights.
4. Children's Rights and Adult Rights

8 Farson 1974, 31, 172, and 185

8

If children can have at least some rights, what rights should they have? One
important reason for asking, and for giving a satisfactory answer to, this question is a
concern that the child's moral status should be adequately secured and protected.
Some believe that this is assured by discharging our obligations as adults to children.
It can also be maintained that there are things we ought not to do to children, just as
there are things we ought not to do to animals, without believing that animals or
children have rights. But children are not animals. They are human beings. Ought
they not then to have the basic rights that humans have?
One thought would be that although children are entitled to the same moral
consideration as adults it does not follow that children should possess the same
package of rights as adults. Since children are humans they are surely entitled to the
basic human rights. But there are some rights possessed by adults which children
cannot possess. This is a view defended by Brennan and Noggle in 1997. The rights
which adults possess are role-dependent rights. These are rights associated with
particular roles, and possession of the relevant right is dependent on an ability to play
the role. Thus doctors have rights that their patients do not, and car-drivers have
rights that those who have not passed their driving test do not. This argument is
interesting not least because it does not provide, in respect of their rights, a
fundamental distinction between adults and children. After all some adults could
conceivably possess no more than the basic rights possessed by children since they
might have none of the abilities required to play any of the roles associated with the
role-dependent rights.
To say that children do not have all the basic human rights that adults do is not to
deny them their status as humans. After all it makes sense to insist that children, but
not animals, have a basic right to life. Vegetarians who think it immoral to kill
animals for food do notas they couldprotect animals from being killed by other
animals. They do not require a predatory species not to violate the rights of its animal
victims. But we do think children have a right to be protected and that we should
enforce the duty on adults not to harm them. It also makes sense, as suggested, to say
that children do not have an adult right of self-determination. It is controversial to say
that children are persons, since, following John Locke, this term denotes those
possessed of moral agency and capable of being responsible for their actions. Weaker
or stronger conceptions of personhood would lead to the inclusion or exclusion of
humans at various ages from the category of person. However it is not controversial
to state that children are human, and in saying this to insist that they are entitled to a
certain moral regard
The protection rights since, in general, seek to provide protection for children.
Further they do so because the state or condition of childhood calls forth and requires
this protection. We should be careful to distinguish protection from welfare rights.
Children, along with adults, have welfare rights but the content of these will differ
between children and adults. It will do so because of the particular form that
children's needs and circumstances take. Thus grant that both children and adults
9

have a welfare right to health care. In the case of children but not that of adults
paediatric care and treatment is appropriate. But that fact is no different in its
significance from the fact that amongst different adults the proper form of health care
should vary in line with their various disabilities, diseases, and circumstances.
5. The Child's Right to Grow Up

The sub-class of rights are those which Feinberg characterises as rights-in-trust and
which he thinks can be resumed under the single title of a right to an open future.
These are the rights given to the child in the person of the adult she will become.
They are the rights whose protection ensures that, as an adult, she will be in a
position to exercise her rights to the maximal or at least to a very significant degree.
They keep her future open. Such rights impose limits on the rights of parents, and
also impose duties on the part of the state to protect these rights.
A couple of things are worth noting about these rights-in-trust. First, Feinberg refers
to these rights as anticipatory autonomy rights, which might suggest that they are
only A-rights-in-trust. But he also speaks, within a page, of rights-in-trust of class C
as protecting those future interests a child will have as an adult. This implies that they
are also anticipatory welfare rights9. Hence this sub-class of C-rights ensures that the
adult can later exercise both her A-rights (liberty) and her A-C-rights (welfare).
Second, there is the question of how open a child's future should be. Some interpret
the demand for an education for an open future as requiring individuals to acquire
to the greatest possible extent the capacity to choose between the widest possible
varieties of ways of life10.
Closely related to Feinberg's idea of rights-in-trust is Eekelaar's idea of a child's
developmental rights (Eekelaar 1986). These are the rights of a child to develop her
potential so that she enters adulthood without disadvantage. Whereas Feinberg
attributes the rights to the child's adult-self, the child holding them only in
anticipatory form, Eekelaar attributes the rights to the adult's child-self. Arguably
this makes no difference since the child and the adult are one and the same person.
Although this is a metaphysically contentious claim grant that child and adult are
merely distinct temporal stages of a single individual. Child and adult are one and the
same person. Whether each temporal stage of the person has the same interest in the
child developing into an adult is a further issue which will be considered shortly.
However consider the case of a child who will not develop into an adult, say
someone who is suffering from a terminal disease that will prevent her living beyond
the age of majority. Such a child lacks developmental rights. The child has an interest
9 Feinberg 1980, 1267
10 Arneson and Shapiro1996, 388
10

in not suffering harm and in enjoying a certain standard of life even if she never lives
beyond her childhood.
When, for instance, we provide a child with health care or protect her from abuse we
not only thereby serve her immediate interests as a child but we also ensure that she
will grow into a mentally and physically healthy adult. At its simplest a child's
welfare right not to be killed is a precondition of the very possibility of there being a
future adult with any rights at all. Even the education of a child can be represented as
not merely of instrumental worth to the future adult but of value to the child here and
now. A child has an interest now in learning things and does so independently of what
this might later mean for her future adult self.11
Childhood is something best appreciated by the child. It is also something that needs
to be left behind. In the words of Paul, When I was a child, I spoke as a child, I
understood as a child, I thought as a child: but when I became a man I put away these
childish things.12
6. Best Interests

If children are not thought to have the rights, and, chiefly, do not have the liberty
rights to choose for themselves how to conduct their lives, nevertheless they are not
morally abandoned to their own devices. In the first place it is a standard principle of
child welfare law and policy that the best interests of a child should be promoted.
Article 3.1 of the United Nations Convention on the Rights of the Child states that In
all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration13.
Second, Article 12.1 of the Convention asserts that, States Parties shall assure to the
child who is capable of forming his or her own views the right to express those views
freely in all matters affecting the child, the views of the child being given due weight
in accordance with the age and maturity of the child.
Section 8 discusses the right to be heard. This section discusses the best interest
principle, henceforward the BIP (Best Interest Principle). The principle has been
given different explicit formulations. Thus we may speak of a child's best interests
or simply of a child's interests or welfare. The former is the more familiar version
of the principle and it is this understanding of the principle that will be discussed.

11 Coady 1992, 51
12 I Corinthians 13:11
13 United Nations 1989
11

The objectivist interpretation of the BIP is beset by a number of difficulties. Some

urge that what is best for any child is necessarily indeterminate. There certainly is no
fact of the matter in this regard for we must attach values to the options and their
outcomes in respect of any choice of action towards a child. However it will be said
that independently of questions of value we cannot, with certainty, determine what is
best for a child. We cannot in practice make complete and accurate assessments of
what will be the outcome of each and every policy option that we might adopt in
respect of a child (Mnookin 1979). How can we know with certainty whether this
child will flourish if raised by this set of parents rather than by some others in an
alternative setting? Even where we are seeking to rank the outcomes of the options
within a simple custody dispute between mother and father things may prove
impossibly difficult. After all, any number of things may happen if the child is in the
mother's custody, and the same is true if the child is given to the father. The BIP is
indeterminate even where there are only two possible decisions to be made (Elster
1989, 134139).
If the claim what is best for a child is different in different cultures is a report of
cultural differencewhat each culture believes to be best for its children differs
then it is still consistent with the BIP having a single universal content. What is best
for children is the same whatever the culture, and allowing for the variation in
application of the same principle to different contexts. It is just that some cultures do
not adhere to the BIP in this form. However things are clearly not that simple. It is
one thing to acknowledge in principle that there must be a single BIP; it is quite
another to find agreement on what that principle is. The discussions surrounding the
formulation of international conventions of human rights have been notoriously beset
by significant, and culturally based, differences of moral and political outlook. The
United Nations Conventions on the Rights of the Child was no different (LeBlanc
1995).
Would a rational adult choose to stick her hand in the fire, walk out into the traffic,
eat whatever was placed in front of her? However if the adult is confronted with other
sorts of choices the answer is far less clear. Faced with our imagined choice between
playing football and a music lesson how would the adult choose? This of course is
wholly indeterminate since different adults will presumably choose differently in the
same situation. The adult who prefers football to music will choose the former; the
adult who prefers music will choose otherwise.
These varying interpretations of what it is to choose for a child as an adult would, and
their attendant difficulties, display the problems of construing the best interests of a
child in terms of the hypothetically adult choices the child would make. The
problems are in the last analysis due to the following basic fact. In the cases of adults
paternalistically choosing for other adults, and where the paternalism is warranted by
a temporary failure of reason, we can have a determinate sense of how the adult
would have chosen in the absence of the failure. If she had known that the bridge was
unsafe she would have chosen not to cross it. If she was not persuaded by the
12

influence of the drug to think she could fly she would not have decided to jump off
the tall building. And so on.
However in the case of children we cannot cash out these hypothetical conditionals.
We do not know what a child would choose if possessed of adult rational powers of
choice because what makes a child just is its lack of such powers (its ignorance,
inconstant wants, inconsistent beliefs, and limited powers of ratiocination). At the
same time we cannot ask how an adult would choose if in the child's situation just
because an adult would not be in that situation, or would not be in a child's situation.
We must, it seems, choose for a child because a child cannot choose for itself, and we
must choose what is best for a child not what some imagined adult version of the
child would choose for itself.
7. The Right to be Heard

The right to be heard is a valuable right. What makes it valuable is both that there is a
point to making one's views known and, further, that making one's views known
makes a difference. It matters to me that I can speak out on political questions. It
matters also, and probably more, if what I say leads to the changes I favour.
Correlatively it is true both that I do not want to be silenced and that I do not want the
statement of my views to be ineffectual.
How is it with the child's right to be heard? It will be important for the child to be
listened to. But it is also important that the child is heard in the sense that her views
are given due consideration and may influence what is done. Note that the child's
right to be heard on matters affecting its own interests is a substitute for the liberty
right to make one's own choices. The right to be heard is only a right to have the
opportunity to influence the person who will otherwise choose for the child. The
power to make those choices resides with the adult guardian or representative of the
child. All the child retains is the right to try to motivate that adult to choose as the
child herself would choose if she was allowed to.
Article 12.1 of the United Nations Convention on the Rights of the Child not only
accords the child the right freely to express its views on matters affecting the child. It
also, and crucially, gives the child an assurance that these views will be given due
weight in accordance with the age and maturity of the child. Great emphasis is now
placed on what are termed a child's participation rights as opposed to his or her
protection rights. The latter, as the name suggests, protect the child from violent,
abusive, cruel or exploitative treatment. Participation rights by contrast, give the
child some entitlement to be the agents of their own lives. Article 12.1 provides a
crucial underpinning justification for such rights. There are problems in
understanding how practically to implement such rights (Ang et al, 2006). There are
also theoretical issues in making precise sense of what a right such as that enshrined

13

in Article 12.1 might mean. The celebrated British legal judgement in the Gillick
case14 provides a useful guide. This judgement has been extensively if not
exhaustively discussed, and it has also been highly influential in matters relating to
the consent of children to medical treatment.
The Gillick judgement arose from the dissatisfaction of a mother with the failure of
her local health authority to withdraw an advisory circular to the area's doctors. This
advised doctors that they could counsel and inform young girls under the age of 16
about sexual matters as well as provide them with contraception, and that they could
do this without the consent of the child's parents. The mother, Victoria Gillick, went
to court to have the circular declared unlawful. The final judgement by the British
House of Lords was that the circular was not unlawful. A key issue, relevant to the
present discussion, concerned the proper relationship between the child's right to
decide for itself and the parent's right to decide for the child.
In deciding in favour of the health authority one of the Law Lords, Lord Scarman,
made a statement crucial to his finding and one that has subsequently been much
cited. It is worth reproducing:
The underlying principle of the law is that parental right yields to the child's right
to make his own decisions when he reaches a sufficient understanding and
intelligence to be capable of making up his own mind on the matter requiring
decision.
I would hold that as a matter of law the parental right to determine whether or not
their minor child below the age of 16 will have medical treatment terminates if and
when the child achieves a sufficient understanding and intelligence to enable him to
understand fully what is proposed15.
Three final comments on the child's right to choose are in order. First, what is deemed
to be in the child's best interests is evidence for but not finally determinative of a
judgement as to the competence of the child. Nevertheless balancing a child's right to
be heard against a child's right to have its best interests promoted is difficult. Second,
it is arguably enough to show a child's competence that a child understands the nature
of the act. After all no more is needed for an adult's consent to be informed. In the
law of contract adults need only to know what they are signing up to. They do not
need a full appreciation of the contract's significance and of its import for their future
lives. Third, Gillick competence as specified is very demanding. Indeed there are
many adults who in making their choices fail to display the maturity and
understanding of what is involved that is dictated as necessary for the child. Why
then should a child have to display a competence that many adults lack both in
general and in particular cases?
14 Gillick [1986]
15 Gillick [1986] 186, 1889
14

Conclusion

We thus infer that Children hold rights upon themselves for the consideration of them
being a moral human being, however this doesnt mean that their rights are restricted
or limited in time and space for the reason of their youth. However, it is the reason of
their youth that accords them special rights of protection and liberty. Though
Childrens Rights and Adult Rights are distinct at the core, they shade out into each
other. The Right to Grow Up benefits in their overall development in furtherance of
what is in the best interest of these young right-holders.
One important, indeed central, manner of understanding the moral status of the child
is by questioning whether or not children have rights. It is normally thought that
according to the will theory of rights children cannot have rights, whereas according
to the interest theory they can. It is, however, at least possible on the will theory
that children could have rights, albeit ones that are exercised by trustees or
representatives.
Child liberationists claim that children have all the rights that adults do. Others deny
this, either believing that children have no rights or believing that children have only
some of the rights which adults possess. Those who believe children have no rights
deny that children are qualified as adults are to have rights. They further argue that
the ascription of rights to children manifests a misunderstanding of what children are
like and of the nature of family relationships. Those who deny children all or some of
the rights possessed by adults nevertheless believe that children, as humans, have a
certain moral status that ought to be protected.
Those who say that drawing a line between adults and children in respect of their
possession of rights is arbitrary may mean different things. To deny that different
capacities are progressively acquired at different ages is implausible. To insist that
drawing a line as such is wrong ignores the point of doing so, and recourse to the
alternative of a competency test is not appropriate or practicable. On the standard
view children have welfare but not liberty rights, whereas adults have both. Adults
also have the right that their childhood selves shall grow up to be adults of a certain
sort. Children do not have an interest in remaining in childhood.
The best-interest principle should arguably have only limited application. It is not
possible unambiguously to interpret the best interests of a child in terms of a
hypothetical adult self, and any objective interpretation will be the subject of
contested views. A child's right to be heard in matters affecting its interests is a
substitute not a complement to the right of choosing for herself, which qualifies a
child to exercise its rights of decision-making.
However, it seems that the regime on the rights of children has a long way to grow as
we see continuous unexplained violations and abuse on the rights of children; which
need to be curb in order to secure a peaceful future for these Children.
15

Bibliography

References Cited

Archard, David William, "Encylopedia on Children's Rights", The

Stanford Encyclopedia of Philosophy

Brennan, S. and Noggle, R., 1997, The Moral Status of Children: Children's
Rights, Parents' Rights, and Family Justice, Social Theory and Practice, 23: 126.

Brighouse, H., 2002, What Rights (if any) do Children Have? in The Moral
and Political Status of Children: New Essays, D. Archard and C. Macleod (eds.),
Oxford: Oxford University Press: 3152.

Cohen, H., 1980, Equal Rights for Children, Totowa, NJ: Littlefield, Adams,
and Co.

Eekelaar, J., 1986, The Emergence of Children's Rights, Oxford Journal of

Legal Studies, 6: 161182.

Elster, J., 1989, Solomonic Judgements, Studies in the limitations of

rationality, Cambridge: Cambridge University Press.

Farson, R., 1974, Birthrights, London: Collier Macmillan.

Feinberg, J., 1980, A Child's Right to an Open Future, in Whose Child?
Parental Rights, Parental Authority and State Power, W. Aiken and H. LaFollette, H.,
Totowa, NJ: Littlefield, Adams, and Co.: 124153.
Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112.

Griffin, J., 2002, Do Children Have Rights? in The Moral and Political
Status of Children: New Essays, D. Archard and C. Macleod (eds.),Oxford: Oxford
University Press: 1930.

Hart, H,L.A., 1973, Bentham on Legal Rights, in Oxford Essays in

Jurisprudence, 2nd series, A. W. Simpson (ed.) Oxford: Clarendon Press: 171201.

MacCormick, N., 1982,Children's Rights: A Test-Case, in his Legal Right

and Social Democracy, Oxford: Clarendon Press: 154166.

Nozick, R., 1974, Anarchy, State, and Utopia, Oxford: Basil Blackwell.

16

O'Neill. O., 1988, Children's Rights and Children's Lives, Ethics, 98: 445
463.

Rawls, J., 1999, A Theory of Justice, Revised Edition, Oxford: Oxford

University Press.

Steiner, H., 1998, Working Rights, in A Debate Over Rights, Philosophical

Enquiries, M.H. Kramer, N. Simmonds and H. Steiner, Oxford: Clarendon Press:
235301.

United Nations (1989) The Convention on the Rights of the Child, P. Alston, S.
Parker and J. Seymour (eds.), Oxford. The Convention on the Rights of the Child.
United Nations Lawmaking on Human Rights, Oxford Press 293316.

Review of Literature
The work of Archard David William: "Philosophical Encyclopedia on Children's
Rights" has formed the underlying basis of this study. Aided by the aforesaid,

the author has examined the issues of morality involved in consideration of the issue
of children. The work has insightfully reflected as to what makes children a special
consideration for certain rights and also an exception for some others.

Another work of much utility was the The Convention on the Rights of the Child,
United Nations (1989) notes by Alston, Parker and Seymour, Oxford for they
enunciated the provisions of the Charter in light of the current Jurisprudential Inquiry
and state-of-affairs the world is in. The various definitions and provisions of the said
charter have all been cited to this authority.

Gillick v. West Norfolk and Wisbech Area Health Authority [1986] AC 112 is a
judgement on the right of a child to be heard through his parents. Through the
literature of this judgement, Lord Scarman has ruled that the principle of law is that
parental right leads to the child's right to make his own decisions when he reaches a
sufficient understanding and intelligence to be capable of making up his own mind on
the matter requiring decision. This judgement holds much importance since it is
further enunciated that this doesnt mean that before reaching this understanding and
intelligence, the child doesnt hold any rights. Only that, he holds some rights
through his parents.

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