Title: THE UN CONVENTION ON THE RIGHTS OF THE CHILD: SOME CRITICAL THOUGHTS
1THE UN CONVENTION ON THE RIGHTS OF THE CHILD
SOME CRITICAL THOUGHTS
- Professor David Archard, Department of
Philosophy, University of Lancaster
d.archard_at_lancaster.ac.uk
2Aims
- On the idea that children have rights
- On the status of the UNCRC
- Universal rights and cultural assumptions
- The central tension of the UNCRC
- Hearing the child the Gillick cases
- Why hear the child?
- The moral and political status of the child and
the adult
3Moral and Legal Rights
- The existence of the CRC does not settle the
question of whether, morally, children ought to
have rights - Two kinds of philosophical scepticism
- Do children have rights?
- Do children have the rights they are given by the
CRC?
4Children have no rights
- James Griffin Onora ONeill Laura Purdy
- Children lack the qualifying capacities to be
rights-holders - Giving children rights contributes to a harmful
rights-inflation. - Giving children rights is harmful to their (and
future adults) interests - The interests of children can be adequately
protected without the concession of rights
5John Locke on children
- Children, I confess are not born in this full
state of Equality, though they are born to it
(Two Treatises of Government, 1698, II, Chapter
vi, 55 emphasis added). - To turn him loose to an unrestraind Liberty,
before he has Reason, to guide him, is not the
allowing him the priviledge of his Nature, to be
free but to thrust him out amongst Brutes, and
abandon him to a state as wretched, and as much
beneath that of a Man, as theirs (63)
6The political case for supporting the CRC
- Imperfect laws may be better than nothing or
aiming only for the ideal - The CRC is widely ratified
- The CRC has been hugely influential in the way
that we think about children - On the whole the CRC gets its broadly right about
what ought to be done for children - Conclusion if you want to protect the interests
of children everywhere then the best way to do so
is by supporting the CRC
7Universal values and cultural differences
Standard criticism of the UNCRC is that it
falsely assumes the global universality of
childrens needs and interests Thereby, at best,
neglecting differences between cultures, and At
worst, being an instrument for the imposition of
Western values onto non-Western societies.
8Universal values and cultural differences
- Statements of the importance of promoting
childrens needs or interests can be consistent
with recognising that these needs and interests
take a different form in different contexts - Everywhere we should do everything we can that
is best for children does not mean - What is best for children is that we should do
the same thing everywhere for children
9Universal values and cultural differences
- But we might recognise that some statements of
what is best for children are insensitive to
context - Article 32
- 1. States Parties recognize the right of the
child to be protected from economic exploitation
and from performing any work that is likely to be
hazardous or to interfere with the child's
education, or to be harmful to the child's health
or physical, mental, spiritual, moral or social
development.
10Universal values and cultural differences
- Or a certain Western view of the nuclear family
- Article 18
- 1. States Parties shall use their best efforts to
ensure recognition of the principle that both
parents have common responsibilities for the
upbringing and development of the child.
11Forms of scepticism about childrens rights
- Children do not have rights
- Children do not have the same rights wherever
they live in the world - Children do not have the rights that the CRC
gives them - There are, according to this last criticism, real
tensions between the rights in the CRC
12The Three Ps
- Provision the right of the child to the
enjoyment of the highest attainable standard of
health and to facilities for the treatment of
illness and rehabilitation of health (Article
24) the right of every child to a standard of
living adequate for the child's physical, mental,
spiritual, moral and social development (Article
27) and the right of the child to education
(Article 28). - Protection the right of the child to be protected
from all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment,
maltreatment or exploitation (Article 19) to be
protected from all forms of sexual exploitation
and sexual abuse (Article 34) and to be
protected from economic exploitation and from
performing any work that is likely to be
hazardous (Article 32). - Participation the rights to freedom of
expression (Article 13) to freedom of thought,
conscience and religion (Article 14) and to
freedom of association and to freedom of peaceful
assembly (Article 15).
13PROTECTING ADULTS CHILDREN
- Adults, unlike children, can choose to be harmed
- Children as a group, and by comparison with
adults, are more vulnerable to the kinds of
treatment against which they need to be protected
and are less able to defend themselves against
ill-use.
14THE CENTRAL TENSIONEMPOWERMENT v. PROTECTION
- Articles 3 and 12 state, respectively, that
- in all matters affecting the child the best
interests of the child shall be a primary
consideration and - that the child who is capable of forming his or
her own views has 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.
15Article 3
- It does not use the word right.
- The key phrase is a primary as opposed to a
paramount consideration - The best interest principle stated in its
generality in Article 3 is to be found endorsed
and given particular effect in other articles
which deal with the separation of children from
their parents (9, 20 and 31), the parental role
(18), adoption (21) and the subjecting of
children to legal proceedings (40).
16Gillick- competence
- The English House of Lords resolved in 1986 that
a child, rather than his parent, has, in the
words of Lord Scarman, a right to make his own
decision when he reaches a sufficient
understanding and intelligence to be capable of
making up his own mind on the matter requiring
decision
17An important contrast
- Gillick
- The child has a right to make his own decision
when he reaches a sufficient understanding and
intelligence to be capable of making up his own
mind on the matter requiring decision - Threshold of enough understanding or maturity
- CRC (Article 12)
- the child who is capable of forming his or her
own views the right has 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. - Weighting of maturity
18Five post-Gillick cases
- In Re E (A Minor) 1990 a 153/4-year-old boy
refused to consent to the transfusions deemed
necessary to treat his leukaemia. He and his
family were devout Jehovahs Witnesses and thus
refused the treatment on religious grounds. - In Re R (A Minor) 1991 a 15-year-old girl who
had suffered increasingly serious episodes of
mental illness was detained in a hospital where,
in a lucid interval, she refused the proposed
treatment which included the administration,
against her will, of certain drugs. - In Re W 1992 the authorities sought to admit a
15-year-old suffering from anorexia nervosa,
against her wishes, to a unit specialising in the
treatment of eating disorders. - In Re L 1998 a 14-year-old who suffered
extremely serious burns in an accident refused
medical treatment, blood transfusions, because
she was a Jehovahs Witness. - In Re M 1999 a 151/2-year-old refused a
life-saving heart transplant essentially on the
grounds that she did not want to take tablets for
the rest of her life and that she did not want to
have someone elses heart in her body
19The courts reasoning
- The courts acknowledged that all five children
were capable of forming their views, and had
clear, and clearly expressed, views. - The courts asked a simple question is the child
competent? Does the child display a sufficient
understanding and intelligence to be capable of
making up his own mind on the matter requiring
decision? The courts used the threshold
understanding of a childs capacity. - Children who express views which conflict with a
judgment of their best interests must be
incompetent.
20The five post-Gillick cases
- The boy is judged of sufficient intelligence to
be able to take decisions about his own
well-being but is nevertheless thought unable
fully to grasp the whole implication of what
the refusal of the treatment involves. - The judge finds the girl to be sectionable even
though the consultant child psychiatrist is
quoted as reporting that she is of sufficient
maturity and understanding to comprehend the
treatment being recommended and is currently
rational - The judge is clear that irrational beliefs are no
bar to being Gillick competent. However her
condition, anorexia nervosa is one that
destroys the ability to make an informed
choice( In re W 1992 769). - The court asserted that the girls sheltered
life had left her with a limited experience of
life in consequence she was necessarily
restricted in her understanding of matters which
are as grave as her medical situation - The girl is credited with being intelligent,
and she certainly offers credible reasons for
refusing a life-saving operation. She also
demonstrates a clear understanding of what death
means. Yet the court judged her be overtaken
and overwhelmed by events such that she has
not been able to come terms with her situation.
- In Re E (A Minor) 1990 a 153/4-year-old boy
refused to consent to the transfusions deemed
necessary to treat his leukaemia -
- In Re R (A Minor) 1991 a 15-year-old girl who
had suffered increasingly serious episodes of
mental illness was detained in a hospital where,
in a lucid interval, she refused the proposed
treatment which included the administration,
against her will, of certain drugs. - In Re W 1992 the authorities sought to admit a
15-year-old suffering from anorexia nervosa,
against her wishes, to a unit specialising in the
treatment of eating disorders. - In Re L 1998 a 14-year-old who suffered
extremely serious burns in an accident refused
medical treatment, blood transfusions, because
she was a Jehovahs Witness. - In Re M 1999 a 151/2-year-old refused a
life-saving heart transplant essentially on the
grounds that she did not want to take tablets for
the rest of her life and that she did not want to
have someone elses heart in her body
21Unsatisfactory judicial reasoning
- The children are making poor judgments.
- The judgments are poor because they are at
variance with the professional assessment of
their best interests. What is best for the
children is to have the medical treatment in
question and yet the children wish to refuse such
treatment. - Because the children are making such poor
judgments they must be incompetent, not possessed
of sufficient understanding and intelligence to
make up their own minds. - Finally, because the children are incompetent
their views should count for nothing, they should
carry no weight in any overall determination of
the appropriate outcome.
22The creative tension between empowerment and
protection
- The child as both in need of protection and as
showing some but not all of the capacities of an
adult decision maker. - Best interest always trumps the childs views.
Yet...... - Articles 3 and 12 have equal status
- And what is the point of according the child a
hearing if her views never prevail
23The merely instrumental value of hearing the child
- First, knowing what a child thinks improves our
initial diagnosis of what is best for the child. - Second, knowing what a child wants to happen
allows us to estimate the costs of implementing
our judgement when this goes against the childs
wishes.
24Why hear the child?
- Imagine we could work out what was best for the
child without any need to hear the childs views.
- Or we can know in advance of a child that she is
not sufficiently mature for her views to count. - In both cases there would be no imperative to
hear the child.
25Why hear the child?
- Views as authoritative (Xs wanting to do p is
sufficient reason to let X do p) or - Consultative Xs wanting to do p is not a
sufficient reason to let X do p, but it - Assists us in determining what is best for X
- But children have a fundamental right to be heard
because - A child is a source of views in her own right and
this should be recognised, even if the content of
those views is not determinative of the outcome
and even if the content of those views is not
given a great deal of weight
26The status of adult child
- The distinctive moral and political status of
children as not-yet-adults. They have interests
that must be protected whatever they themselves
may choose and yet they also have a right to be
considered the source of views about those
interests - Adults have a right to lead their own lives. Yet
we have an obligation to promote their best
interests - In both child and adult there is a tension
between a recognition of their right to choose
for oneself and our duty to do the best for them
27Conclusions I
- We can accept that children ought to have the
rights outlined in the CRC. We can do so even if
we see merit in philosophical scepticism either
about the idea that children have rights, or
about the particular list of rights accorded to
them by the Convention. There are good political
reasons for trying to give effect to a document
which does as good job as any available in laying
out the appropriate ways to protect and promote
the interests of children. - The idea that all children have interests that
ought to be recognised and protected is not a
Western assumption - Some understandings of what rights all children
have may be guilty of a biased cultural
understanding. - Whatever the merits of the CRC it would be a
mistake to engage in CRC-worship, and believe
that this Convention is a perfect statement,
consistent and coherent in all respects, of what
children require.
28Conclusions II
- There are real tensions between the ways in which
the different rights given to children can be
justified and thus real conflicts in the
practical recommendations these different rights
will yield. - In particular there is a major tension between
the requirement to promote the best interest of a
child and a requirement to give some weight to
the views of a child. This is most evident in
precisely those cases where what the child wants
conflicts with adult judgments of what is best. - We need to take seriously the requirement that we
hear the child - The fundamental error would be to deny or strive
to eliminate this tension. Rather it should be
seen as a creative and productive tension, one
that arises precisely from the particular status
of the child as not-yet-adult. - Indeed that same tension, properly understood,
can yield insights into how we understand the
status of adults.