Children’s Rights
What is childhood?
● When it begins
o Childhood in law begins at the birth of the child
o The foetus is not considered “a child” but per St George’s Healthcare Trust it is a
“unique organism” protected “in a variety of ways” by the law
▪ However, the mother can choose to have a lawful abortion and the father can
do nothing about this (C v S)
● When it ends
o Children Act 1989:
▪ S.105 “a person under eighteen”
o But this is not necessarily the end
▪ 16 year olds can marry with parental permission
▪ And you cannot adopt until age 21.
Parent’s Rights, Responsibilities and Discretion
● Parental Rights – the difficulties in the definition
o There is a lot of talk of “parental responsibility” in the Children Act – possibly to
emphasise that children are not possessions but people to be cared for
▪ But s.3(1) “In this Act “parental responsibility” means all rights, duties,
powers, responsibilities and authority
● Which by law a parent of a child has in relation to the child and his
property”
▪ Herring: so parents also have rights as well!
o Two important distinctions
▪ Firstly, we need to distinguish when talking about parent’s rights:
● The rights a parent may have as a human being.
o These will be called a parent’s human rights and would
include e.g. free speech, right to life
● From what we actually mean: the rights that a parent may have b/c
she/he is a parent.
o These will be called parent’s parental rights and include
deciding where the child will live.
▪ Secondly when talking about parental rights, we need to be clear what we
mean. E.g. parent’s right to feed a child could mean three things:
● 1. This could mean that third parties or the state cannot prevent the
parent carrying out this particular activity
o – no-one is entitled to prevent a parent feeding the child
what food the parent believes appropriate
● 2. Or it could mean that the state must enable the parent to perform
this activity
, o So the State is obliged to ensure that parents have enough
money to so they can provide enough money to fulfil the
child’s needs
● 3. Or it means that the acts of parents are lawful.
o This means that although it may be unlawful for a stranger to
feed the child, the parental right means it isn’t unlawful for a
parent to feed a child.
● Are parent’s rights and responsibilities linked?
o Some views
▪ Lord Scarman in Gillick
● Parental rights are derived from the parental duty, and exist only so
long as they are needed for the protection of the person and property
of the child
o The rights exist for the purpose of promoting the child’s
interests
▪ Bainham:
● Position is not that straightforward – parents have rights b/c they have
responsibilities
o And they have responsibilities b/c they have rights
▪ Freeman:
● Children have a right to responsible parents
o The Child-centred and Parent-centred debate
▪ McCall Smith:
● Child centred rights are given to parents to enable them to carry out
their duties
o So the parent has the right to clothe the child as an essential
part of enabling the parent to fulfil her duty of ensuring the
health of the child
● Parent centred rights exist for the benefit of the parent
o So a parent can decide what religious upbringing the child
should have. The parent gets to decide how to bring up the
child in the most appropriate way
▪ These do no harm to the child, do not positively
promote welfare, but can benefit the child.
▪ Herring: Distinction does not entirely work
● Is the right to feed the child a parent or child centred right?
o Such a right is essential for the health of the child
o But what kind of food is provided (e.g. only vegetarian diet) is
up to the parent
● Also, religious upbringing, diet, humour all contributes to a diverse
society
o So arguable that is promoting child welfare
● However McCall’s distinction does do a good thing:
o Shows that areas which parents have no discretion – e.g.
cannot let child starve
, o But also areas where parents do have discretion – e.g.
whether to feed 5 portions of vegetables a day.
▪ Baroness Hale in R(Williamson) v Sec State Education [2005]:
● Children have a right to be properly cared for and brought up so they
can take their place in society
o Their parents have both the primary responsibility and
primary right to do this
● The state can step in to regulate the exercise of that responsibility in
the interests of the child and society
o But the child is not a child of the state, and it is important in a
free society
▪ that parents should have a large degree of autonomy
in the way they discharge their parental
responsibilities
Why do parents have rights and responsibilities?
● The child as property?
o Children can be seen as the fruit of the parent’s labour through procreation, and
therefore property of the parent
▪ With this as the basis of parental rights
o Herring: At first sight, seems quite an unpleasant idea – people not normally regarded
as property which can be owned
▪ And to describe parent’s legal relationship to their children as same as to their
car or washing machine seems inappropriate
o Barton and Douglas: But property notion has something to be said for it
▪ If a child is removed from hospital by a stranger shortly after birth, parents
might naturally say “their” baby has been stolen
▪ Also, we believe parents should have the right to bring up their children and
not to have them removed w/o sufficient justification, like property
● Children on trust
o The theory is that children have rights as people – as the child can’t exercise these
rights, the parent does so on the child’s behalf
▪ 1. So the parents might be said to hold the rights of the child on trust for the
child until they are old enough to claim them for themselves
▪ 2. The parents hold the rights of the child on trust for the state. The parents
care for the child before they become a citizen and a member of the state
themselves
▪ 3. The parents hold the rights of the child on a purpose trust – the purpose of
promoting the child’s welfare
o Differences theoretically between the three approaches –
▪ in 1. Parent is responsible to the child,
▪ in 2. Parent responsible to the state,
▪ in 3 it is unclear who the parents are responsible to.
o Advantages =
, ▪ trust law is designed to stop trustees abusing the rights in the possession –
must always be directed to the child.
▪ And trustee duties have been altered so that while they do not have to get
everything right, they are prevented from making manifestly bad decisions./
o Disadvantages
▪ There are some uncertainties technically
● What precisely is the subject of the trust?
● Who created it?
▪ There are also practical problems
● It may be justifiable to place on trustees heavy obligations never to
consider their own interests when dealing with the trust property
o But caring for children is a 24 hour obligation for parents,
involving decisions which also affect the lives of the parents.
▪ To require the same standard may be overly onerous
● Equally, although the law can readily establish a widely accepted
standard on
o E.g. the duty of investment upon a trustee
▪ Finding community standards as to what is reasonable
parenting is quite hard.
● Imposition by society
o Eekelaar: Why should parents be under a duty to care for children?
▪ Every person owes a basic duty to other people to promote human flourishing
▪ Secondly, on top of that basic duty, there are special duties that society
chooses to impose on particular people in particular circumstances
● Our society chooses to impose special duties on parents to care for
children – this is b/c children are vulnerable and adults are best placed
to help them
o Barton and Douglas:
▪ But this suggests that if we took children away from their parents at birth to
be cared by state agencies, this would be fine
● Even if it was shown to cause no harm, this system would be seen as
many as objectionable – hence the better approach is property.
● Voluntary assumption of obligations by parents
o Barton and Douglas:
▪ Voluntary obligation is the idea – a parent who does not want to care for the
child is not necessarily obliged to
● So a mother is not obliged to raise a child, except for giving it basic
care
o Buy anyone who does take on these duties must do them
reasonably
o Herring: Fine in theory, but doesn’t explain the practice
▪ If Y notices that her neighbour X has a baby, and Y steals the baby wanting to
care for it
● We don’t just grant Y parental rights
● Need to tie the idea in with property/trust/imposition argument as
well – not sufficient on its own.
What is childhood?
● When it begins
o Childhood in law begins at the birth of the child
o The foetus is not considered “a child” but per St George’s Healthcare Trust it is a
“unique organism” protected “in a variety of ways” by the law
▪ However, the mother can choose to have a lawful abortion and the father can
do nothing about this (C v S)
● When it ends
o Children Act 1989:
▪ S.105 “a person under eighteen”
o But this is not necessarily the end
▪ 16 year olds can marry with parental permission
▪ And you cannot adopt until age 21.
Parent’s Rights, Responsibilities and Discretion
● Parental Rights – the difficulties in the definition
o There is a lot of talk of “parental responsibility” in the Children Act – possibly to
emphasise that children are not possessions but people to be cared for
▪ But s.3(1) “In this Act “parental responsibility” means all rights, duties,
powers, responsibilities and authority
● Which by law a parent of a child has in relation to the child and his
property”
▪ Herring: so parents also have rights as well!
o Two important distinctions
▪ Firstly, we need to distinguish when talking about parent’s rights:
● The rights a parent may have as a human being.
o These will be called a parent’s human rights and would
include e.g. free speech, right to life
● From what we actually mean: the rights that a parent may have b/c
she/he is a parent.
o These will be called parent’s parental rights and include
deciding where the child will live.
▪ Secondly when talking about parental rights, we need to be clear what we
mean. E.g. parent’s right to feed a child could mean three things:
● 1. This could mean that third parties or the state cannot prevent the
parent carrying out this particular activity
o – no-one is entitled to prevent a parent feeding the child
what food the parent believes appropriate
● 2. Or it could mean that the state must enable the parent to perform
this activity
, o So the State is obliged to ensure that parents have enough
money to so they can provide enough money to fulfil the
child’s needs
● 3. Or it means that the acts of parents are lawful.
o This means that although it may be unlawful for a stranger to
feed the child, the parental right means it isn’t unlawful for a
parent to feed a child.
● Are parent’s rights and responsibilities linked?
o Some views
▪ Lord Scarman in Gillick
● Parental rights are derived from the parental duty, and exist only so
long as they are needed for the protection of the person and property
of the child
o The rights exist for the purpose of promoting the child’s
interests
▪ Bainham:
● Position is not that straightforward – parents have rights b/c they have
responsibilities
o And they have responsibilities b/c they have rights
▪ Freeman:
● Children have a right to responsible parents
o The Child-centred and Parent-centred debate
▪ McCall Smith:
● Child centred rights are given to parents to enable them to carry out
their duties
o So the parent has the right to clothe the child as an essential
part of enabling the parent to fulfil her duty of ensuring the
health of the child
● Parent centred rights exist for the benefit of the parent
o So a parent can decide what religious upbringing the child
should have. The parent gets to decide how to bring up the
child in the most appropriate way
▪ These do no harm to the child, do not positively
promote welfare, but can benefit the child.
▪ Herring: Distinction does not entirely work
● Is the right to feed the child a parent or child centred right?
o Such a right is essential for the health of the child
o But what kind of food is provided (e.g. only vegetarian diet) is
up to the parent
● Also, religious upbringing, diet, humour all contributes to a diverse
society
o So arguable that is promoting child welfare
● However McCall’s distinction does do a good thing:
o Shows that areas which parents have no discretion – e.g.
cannot let child starve
, o But also areas where parents do have discretion – e.g.
whether to feed 5 portions of vegetables a day.
▪ Baroness Hale in R(Williamson) v Sec State Education [2005]:
● Children have a right to be properly cared for and brought up so they
can take their place in society
o Their parents have both the primary responsibility and
primary right to do this
● The state can step in to regulate the exercise of that responsibility in
the interests of the child and society
o But the child is not a child of the state, and it is important in a
free society
▪ that parents should have a large degree of autonomy
in the way they discharge their parental
responsibilities
Why do parents have rights and responsibilities?
● The child as property?
o Children can be seen as the fruit of the parent’s labour through procreation, and
therefore property of the parent
▪ With this as the basis of parental rights
o Herring: At first sight, seems quite an unpleasant idea – people not normally regarded
as property which can be owned
▪ And to describe parent’s legal relationship to their children as same as to their
car or washing machine seems inappropriate
o Barton and Douglas: But property notion has something to be said for it
▪ If a child is removed from hospital by a stranger shortly after birth, parents
might naturally say “their” baby has been stolen
▪ Also, we believe parents should have the right to bring up their children and
not to have them removed w/o sufficient justification, like property
● Children on trust
o The theory is that children have rights as people – as the child can’t exercise these
rights, the parent does so on the child’s behalf
▪ 1. So the parents might be said to hold the rights of the child on trust for the
child until they are old enough to claim them for themselves
▪ 2. The parents hold the rights of the child on trust for the state. The parents
care for the child before they become a citizen and a member of the state
themselves
▪ 3. The parents hold the rights of the child on a purpose trust – the purpose of
promoting the child’s welfare
o Differences theoretically between the three approaches –
▪ in 1. Parent is responsible to the child,
▪ in 2. Parent responsible to the state,
▪ in 3 it is unclear who the parents are responsible to.
o Advantages =
, ▪ trust law is designed to stop trustees abusing the rights in the possession –
must always be directed to the child.
▪ And trustee duties have been altered so that while they do not have to get
everything right, they are prevented from making manifestly bad decisions./
o Disadvantages
▪ There are some uncertainties technically
● What precisely is the subject of the trust?
● Who created it?
▪ There are also practical problems
● It may be justifiable to place on trustees heavy obligations never to
consider their own interests when dealing with the trust property
o But caring for children is a 24 hour obligation for parents,
involving decisions which also affect the lives of the parents.
▪ To require the same standard may be overly onerous
● Equally, although the law can readily establish a widely accepted
standard on
o E.g. the duty of investment upon a trustee
▪ Finding community standards as to what is reasonable
parenting is quite hard.
● Imposition by society
o Eekelaar: Why should parents be under a duty to care for children?
▪ Every person owes a basic duty to other people to promote human flourishing
▪ Secondly, on top of that basic duty, there are special duties that society
chooses to impose on particular people in particular circumstances
● Our society chooses to impose special duties on parents to care for
children – this is b/c children are vulnerable and adults are best placed
to help them
o Barton and Douglas:
▪ But this suggests that if we took children away from their parents at birth to
be cared by state agencies, this would be fine
● Even if it was shown to cause no harm, this system would be seen as
many as objectionable – hence the better approach is property.
● Voluntary assumption of obligations by parents
o Barton and Douglas:
▪ Voluntary obligation is the idea – a parent who does not want to care for the
child is not necessarily obliged to
● So a mother is not obliged to raise a child, except for giving it basic
care
o Buy anyone who does take on these duties must do them
reasonably
o Herring: Fine in theory, but doesn’t explain the practice
▪ If Y notices that her neighbour X has a baby, and Y steals the baby wanting to
care for it
● We don’t just grant Y parental rights
● Need to tie the idea in with property/trust/imposition argument as
well – not sufficient on its own.
