THE UN CONVENTION ON THE RIGHTS OF THE CHILD: SOME CRITICAL THOUGHTS

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THE 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

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Aims

• 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

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Moral 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?

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Children 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

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John 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)

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The 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

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Universal 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.
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Universal 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

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Universal 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.

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Universal 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.

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Forms 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

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The 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).

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PROTECTING 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.

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THE 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.

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Article 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).

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Gillick- 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

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An 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

18
Five 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

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The 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.

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The 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

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Unsatisfactory 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.

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The 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

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The 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.

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Why 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.

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Why 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

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The 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

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Conclusions 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.

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Conclusions 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.