Children's Rights and the Law

An Introduction

Hilaire Barnett

• Publisher: Routledge
• Year: 2021
• ISBN:
  9780429840524
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book identifies the definition of a child within the law, the rights of children, and discusses the extent to which primarily English law gives adequate recognition to and protection of these rights.

To what extent does English law gives adequate recognition to and protection of the rights of children? Historically the idea of and protection of rights has focused on parental rights rather than the rights of the child. The rights of children have remained far less recognised and certain until recently. Using case studies from the United Kingdom and beyond, this book takes a thematic approach to children's rights and considers topics including: underlying concepts such as the welfare of the child and safeguarding, the right to education and to medical treatment, the right to freedom from abuse and/or sexual and commercial exploitation, including contemporary challenges from forced marriage, FGM, modern slavery and trafficking, the role of the State in relation to children in need of care and protection, children's rights in the criminal justice system, the right to contract and employment. In addition, the book provides an introduction to key aspects of domestic and international law, including the Children Act 1989, the UN Convention on the Rights of the Child, the European Convention on Human Rights and the Human Rights Act 1998.

The book will be of great interest to law and social science students in the areas of Child Development and Protection, Human Rights Law, Family Law, Child Law, and Child Studies, as well as to social workers, police officers, magistrates, probation officers and other related professions.

1
INTRODUCTION AND LEGAL FRAMEWORK

DOI: 10.4324/9780429452710-1

Introduction

Do children have rights? To what extent, and how, does the law recognise and protect these rights?

Children’s Rights and the Law: An Introduction aims to identify the rights of children and discuss the extent to which (primarily) English law gives adequate recognition to and protection of these rights. Children’s rights enshrined in law range from the right to life, the right to care and protection, the right to education, and the right to medical treatment. Children also have the right to be treated equally and where inequalities exist, for example because of disabilities, the State has a duty to make arrangements in order to lessen that inequality. As a child grows towards maturity, it is increasingly recognised that he or she is entitled to be heard and involved when issues involving his or her well-being are decided. Children also have – depending on age and maturity – the right to enter into enforceable contracts and to the protection of employment law. Children’s rights also include rights when, for whatever reason, they come into contact with the criminal justice system, whether in the form of the police or the courts and/or the prison service. However, identifying the rights of children does not by any means, as will be seen, guarantee that these rights will be adequately protected by the law.

In recent years, globalisation, immigration, and multiculturalism have introduced new challenges to the protection of children from harm. Female Genital Mutilation (FGM), forced marriage, and radicalisation and extremism are particularly difficult and culturally sensitive issues affecting children’s rights. Rather differently, but equally significant is the rapid development and expansion of technology, bringing the internet and its infinite resources within the reach of both adults and children and creating further challenges to the protection of their rights to safety and security.

The evolution of rights

The idea of individual rights which could withstand the power of government can be traced to John Locke (1632–1704)¹ and Thomas Paine (1737–1791)² who laid the foundations for enforceable human rights and the limits of government power.³Over time the majority of countries around the world adopted a written constitution which guarantees individual rights that cannot lawfully be restricted by the country’s law-making body. However, in the UK, the constitution remains largely unwritten (or uncodified) and is founded on the concept of the supremacy of Parliament. In the UK, therefore, the sovereign Parliament can create and limit individual rights as the political climate demands. However, existing alongside the idea of Parliament’s supreme law-making power under the UK constitution has traditionally been the prioritisation of individual freedom over a code of enforceable individual rights. This approach translates into the maxim that the individual is free to do whatever the law does not prohibit – a freedom which lacks the powerful political resonance of legally enforceable rights.

While this constitutional arrangement suggests that rights are fragile in the face of government power, movements – both domestic and international – for the legal protection of rights have resulted in a system which, albeit gradually, has reacted to the pressure for reform and the better protection of rights.⁴ At the forefront of the reform agenda throughout the 20th century was the demand for equality: discrimination on grounds of sex, race, colour, language, religion, political or other opinions, national or social origins, or disability is prohibited by law. On the rights of children, however, the law was silent. Throughout infancy and childhood the child was considered to be under the authority, care, and protection of his or her parents and largely invisible to law (unless the criminal law intervened on the basis of a crime against a child). As Heywood notes ‘Before the nineteenth century, the idea that the State should intervene in relationships between parents and their children was almost unthinkable’.⁵

The recognition and legal protection of children's rights, therefore, is relatively recent. Historically the idea of, and protection of rights has focused on parental rights rather than the rights of the child. Moreover, the parental rights of custody and control over the person of the child and his or her property vested in the father – to the exclusion of the mother.⁶ The law would uphold the rights of the paterfamilias, not interfering with his authority unless it had been abused. The father had a ‘sacred right … over his own children’.⁷ In the 18th century, Sir William Blackstone in his Commentaries on the Laws of England (1765–1769), wrote that a parent owes three duties to a child: those of maintenance, protection, and education. The themes of protection and maintenance remained central to the law relating to children, conferring rights and duties on parents rather than focusing on the rights of the child.

The first Act of Parliament enabling the courts to limit parental rights and exert control over parental behaviour, the Prevention of Cruelty to, and Protection of, Children Act 1889, made it an offence to neglect, ill-treat, abandon, or expose a child. Echoing this, section 1 of the Children and Young Persons Act 1933 made it a criminal offence for a person with responsibility for a child to ‘wilfully assault, ill-treat, neglect, abandon, expose (or cause “him” to suffer any of these at the hands of another) in a manner likely to cause him unnecessary suffering or injury to health’.

The welfare of the child, however, remained largely subordinated to the authority of the parent, particularly the father. As Stephen Cretney explains, in the 1920s – notwithstanding the campaigns for equal rights for women – there was a great deal of opposition to the idea that parents should have equal rights. The official view was that there needed to be one authoritative figure within the family who could take whatever decisions were necessary in relation to the child or children: and that figure was the father.⁸ Furthermore, giving mothers equal rights could lead to legal disputes which could be damaging to family unity and to the well-being of the child.⁹ The Guardianship of Infants Act 1925 was passed against this background and stated that where questions were raised about a child’s custody and upbringing, the court was to regard the child’s welfare as ‘the first and paramount consideration’. Mothers were not given equal rights with fathers until 1973.¹⁰

The 1933 Children and Young Persons Act recognised the importance of the welfare of the child within the context of court proceedings, stating that:

… every court in dealing with a child who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person.

Children and Young Persons Act 1933, section 44

However, other than where a child came before a court, the focus on parental rights and duties rather than on the child, meant that the welfare of the child was not overtly recognised. It was to be in 1971 that the House of Lords (then the highest court in the UK, now the Supreme Court) articulated the importance of a child’s welfare, insisting that this principle was the determining factor in all disputes over the upbringing of a child.¹¹ The Children Act 1989 later adopted this principle as the guiding factor in child law, section 1 providing that in any case regarding the upbringing of a child or the administration of a child’s property, ‘the child’s welfare shall be the court’s paramount consideration’.

At the international level, in 1924 the League of Nations, (the forerunner to the United Nations) adopted the Geneva Declaration of the Rights of the Child, declaring the right of a child to the means of a normal development, the right to be fed, to receive medical treatment, to shelter, and to freedom from exploitation. In 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights, Article 25(2) recognising the need for the special protection of motherhood and childhood and the rights of children to ‘social protection’. Under the auspices of the Council of Europe, established in 1949, the European Convention on Human Rights (ECHR) came into force in 1953. The Convention relates to human rights in general and is not child-focused, although children enjoy the same protection as adults under the Convention.

In 1998, the Human Rights Act 1998, the majority of rights and freedoms protected under the ECHR were incorporated into UK law, making them enforceable before the domestic courts. Although not child-centred, the Human Rights Act has undoubtedly contributed to a developing culture of children’s rights in the UK. In 1989 the seminal United Nations Convention on the Rights of the Child (CRC) was published. The CRC has been ratified by all member states of the United Nations (with the exception of the United States of America and Somalia). The CRC came into force in 1990. Although the rights are not enforceable before the domestic courts, the CRC is now recognised by all State agencies – from schools to hospitals to police – as setting out the guiding principles in decisions relating to children’s upbringing. The ECHR and the CRC are discussed in more detail below.

Within the UK there is still no comprehensive domestic code of children’s rig...