Do children have rights : five theoretical reflections on children's rights

Abstract

The existence of children's rights in law does not resolve the question as to whether children have rights in reality. In 1973 Hillary Rodham Clinton claimed that children's rights were a 'slogan in search of a definition'. Since then many advances have been made in children's rights: the United Nations Convention on the Rights of the Child was adopted in 1989 and many countries have introduced national legislation protecting the rights of children. Despite these advances the rights of children remain under theorised and poorly implemented. The fundamental question 'do children have rights?' remains contested. This thesis defends and applies a theoretical argument for children's rights over five papers. It does so in two parts. The first part builds a theory for children's rights across three papers: paper one 'Capacity, claims and children's rights', paper two, ''Capacity' and 'Competence' in the Language of Children's Rights' and paper three 'Children's Rights and the Future Interest Problem'. Children have rights because they have interests that are of sufficient importance to be protected and these interests ground claims that produce duties in others to act or refrain from acting. Rights are therefore understood as Hohfeldian claims with correlative duties. This thesis sets out the relationship between a child's capacity and their rights. It is not conceptually necessary for a child to hold the power to enforce or waive their claim in order to hold a right. However a child must be competent in realising the interest to which a particular claim pertains. Furthermore the duty correlated with a child's claim must be reasonable and achievable and the duty-holder must hold the capacity to fulfil the correlative duty. Children are in a special category of right holders as their capacities are rapidly evolving. As a consequence they hold claims to the development of core capacities that produce duties in others to assist in their development. The second part of the thesis applies this theory of children's rights to two cases in two papers: paper four, 'What's Love Got to do with it? Why children do not have a right to be loved' and paper five, 'No harm, no foul: donor conceived children and the right to know their genetic parents'. The case of a child's right to be loved demonstrates what children's rights are not. Children do not have a right to be loved because love as a duty cannot be reasonably fulfilled or enforced. The case of a right to know one's genetic parents illustrates what children's right are. Children have a right to identifying information as they have an interest in being free from psycho-social harm. They have a corresponding right to be told that they are donor conceived. These two cases demonstrate the importance in locating the interest grounding the claim in order to determine the shape of the corresponding duty. This is essential for addressing real policy problems. Understanding why children have rights presents effective pathways for moving children's rights from 'a slogan' into reality. - provided by Candidate. Show more