Wednesday

Should children have rights when parents and other family members fight?

The Right to be Heard

The right to be heard is a valuable right. What makes it valuable is both that there is a point to making one's views known and, further, that making one's views known makes a difference. It matters to me that I can speak out on political questions. It matters also, and probably more, if what I say leads to the changes I favour. Correlatively it is true both that I do not want to be silenced and that I do not want the statement of my views to be ineffectual. As a further general point it is clear that there will always be some issues on which it is more important that I be allowed to speak and that what I say about these issues carries weight in determining outcomes. Those are the issues that matter to me, and the more they matter the more important it is that I have the freedom to speak about them and be heard. On one account since children's views should not be ‘authoritative’, that is determinative of what is done, they have only a ‘consultative’ role (Brighouse 2003). They may influence an outcome by, most obviously, providing those who do make the decisions affecting a child's interests with a clearer picture of what in fact is in those interests. On another account encouraging and according a weight to the expression of children's views—even where this is unlikely to affect outcomes in line with the views' content—is valuable just because the child is capable of expressing a view and deserves to be listened to (Archard and Skivenes 2009).
How is it with the child's right to be heard? It will be important for the child to be listened to. But it is also important that the child is heard in the sense that her views are given due consideration and may influence what is done. Note that the child's right to be heard on matters affecting its own interests is a substitute for the liberty right to make one's own choices. The right to be heard is only a right to have the opportunity to influence the person who will otherwise choose for the child. The power to make those choices resides with the adult guardian or representative of the child. All the child retains is the right to try to motivate that adult to choose as the child herself would choose if she was allowed to.

Article 12.1 of the United Nations Convention on the Rights of the Child not only accords the child the right freely to express its views on matters affecting the child. It also, and crucially, gives the child an assurance that these views will be given ‘due weight in accordance with the age and maturity of the child’. Great emphasis is now placed on what are termed a child's ‘participation rights’ as opposed to his or her ‘protection rights’. The latter, as the name suggests, protect the child from violent, abusive, cruel or exploitative treatment. 

‘Participation rights’ by contrast, give the child some entitlement to be the agents of their own lives. Article 12.1 provides a crucial underpinning justification for such rights. There are problems in understanding how practically to implement such rights (Ang et al, 2006). There are also theoretical issues in making precise sense of what a right such as that enshrined in Article 12.1 might mean. The celebrated British legal judgement in the Gillick case (Gillick [1986]) provides a useful guide. This judgement has been extensively if not exhaustively discussed, and it has also been highly influential in matters relating to the consent of children to medical treatment.
The Gillick judgement arose from the dissatisfaction of a mother with the failure of her local health authority to withdraw an advisory circular to the area's doctors. This advised doctors that they could counsel and inform young girls under the age of 16 about sexual matters as well as provide them with contraception, and that they could do this without the consent of the child's parents. The mother, Victoria Gillick, went to court to have the circular declared unlawful. The final judgement by the British House of Lords was that the circular was not unlawful. A key issue, relevant to the present discussion, concerned the proper relationship between the child's right to decide for itself and the parent's right to decide for the child.
In deciding in favour of the health authority one of the Law Lords, Lord Scarman, made a statement crucial to his finding and one that has subsequently been much cited. It is worth reproducing:
The underlying principle of the law … is that parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.
I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him to understand fully what is proposed. (Gillick [1986] 186, 188–9)
Let me now discuss various issues that arise. First, what does it mean for a child to get to a particular point in their development? On what could be called the threshold interpretation once a child has achieved a certain level of competence her views as to what shall happen to her have a determinate weight, either amounting to a liberty right of choice (on a strong version) or (on a weak version) being counted in the balance against her parents' views and the state's judgement of her best interests. On what could be called the proportionality interpretation the child's views progressively increase in weight as she gains a greater competence to choose for herself. They increase up to the acquisition of a full liberty right of choice.

Second, on either the threshold or the proportionality account we need a measure of that ability that marks the threshold or is simply progressively acquired. How much intelligence and understanding, for instance, is sufficient? In the first place this measure must be taken independently of any judgement of what is in the child's best interest. That a child would choose what is taken to be in her best interests is at most evidence that she does have sufficient intelligence and understanding of the relevant issue. Her making such a choice is not a necessary condition of her having the requisite ability. Similarly the making by a child of a poor choice is not conclusive evidence of her general incapacity to choose for herself. Wise adults can occasionally make stupid decisions just as fools sometimes get it right.
In the Gillick judgement Scarman required of the child that she manifest an understanding of the ‘nature’ of the contraceptive advice offered and ‘also have a sufficient maturity to understand what is involved’ (Gillick [1986] 189). We can distinguish here a number of possible elements. There is, first, knowledge of certain facts. A child, for instance, knows that a contraceptive acts to prevent conception that might otherwise result from sexual intercourse. Another child, by contrast, could simply be ignorant of or unable to comprehend the facts of reproduction. There is, second, an understanding of what follows for the child from an act or its omission. Thus failure to use a contraceptive could lead a young person who had sexual intercourse to become pregnant. These two understandings together constitute knowledge of the ‘nature’ of the act. Finally there is what arguably comes with ‘maturity’ which is the ability to appreciate the significance both of an act or its omission and of the relevant consequences. It is one thing to know what it is to become pregnant, and another to understand what that means. This latter understanding involves realising that pregnancy brings in its wake physical changes, that any resultant birth leaves a young person with a child to care for, and so on. Scarman even insisted that the child would need to have an appreciation of the ‘moral and family’ questions involved.
Third, it is important in measuring a child's competence against that in respect of which he or she is expressing a view to distinguish between the complexity and the seriousness of the matter. A simple choice—for instance that between only two options such as whether or not to have a life-saving operation—may nevertheless be portentous, having enormous and far-reaching consequences. It may thus require much greater appreciation of what is involved than a more complex decision, one that ranges over many possibilities. Yet the latter kind of choice—consider choosing a five-course meal from a very large menu—is far less serious in its consequences. In short, the difficulty or complexity of a choice should not be confused with its importance or significance for the child.
Fourth, the English courts at least have detected a fundamental asymmetry between refusing and choosing to have treatment. A competent adult has a right both to choose to have treatment and to refuse it. Should this not also be the case with a competent child? A 15-year-old who wants to have a particular operation against her parents' wishes and even contrary to the best judgement of her doctors may be judged competent and thus have her wishes respected. However the English courts in a series of judgements after Gillick have argued that matters are somehow different when it is a case of a child refusing an operation.
Of course there is no inconsistency if a refusal requires a greater degree of understanding and appreciation of the issues than a positive acceptance. But where the choice is a simple disjunction it is hard to see how this can be the case. Are not the issues at stake the same for both disjuncts? If the courts believe that an obligation to act in the best interests of the child trumps one to respect the wishes of a competent child it needs to be shown why this obligation does not have force in all circumstances. Why would a court not deny treatment to a child it does not believe in her best interests when it judges her competent to choose? If a child is competent then she is in all significant and relevant respects the equal of an adult and should be able both to choose and to refuse treatment.
Three final comments on the child's right to choose are in order. First, what is deemed to be in the child's best interests is evidence for but not finally determinative of a judgement as to the competence of the child. Nevertheless balancing a child's right to be heard against a child's right to have its best interests promoted is difficult. Second, it is arguably enough to show a child's competence that a child understands the nature of the act. After all no more is needed for an adult's consent to be informed. In the law of contract adults need only to know what they are signing up to. They do not need a full appreciation of the contract's significance and of its import for their future lives. Third, Gillick competence as specified is very demanding. Indeed there are many adults who in making their choices fail to display the maturity and ‘understanding of what is involved’ that is dictated as necessary for the child. Why then should a child have to display a competence that many adults lack both in general and in particular cases? 
Excerpt of material borrowed from: Author and Citation Information for "Children's Rights"
The latest version of the entry "Children's Rights" may be cited via the earliest archive in which this version appears:
Archard, David William, "Children's Rights", The Stanford Encyclopedia of Philosophy (Winter 2014 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/win2014/entries/rights-children/>.

Children are young human beings. Some children are very young human beings. As human beings children evidently have a certain moral status. There are things that should not be done to them for the simple reason that they are human. At the same time children are different from adult human beings and it seems reasonable to think that there are things children may not do that adults are permitted to do. In the majority of jurisdictions, for instance, children are not allowed to vote, to marry, to buy alcohol, to have sex, or to engage in paid employment. What makes children a special case for philosophical consideration is this combination of their humanity and their youth, or, more exactly, what is thought to be associated with their youth. One very obvious way in which the question of what children are entitled to do or to be or to have is raised is by asking, Do children have rights? If so, do they have all the rights that adults have and do they have rights that adults do not have? If they do not have rights how do we ensure that they are treated in the morally right way? Most jurisdictions accord children legal rights. Most countries—though not the United States of America—have ratified the United Nations Convention on the Rights of the Child which was first adopted in 1989. The Convention accords to children a wide range of rights including, most centrally, the right to have their ‘best interests’ be ‘a primary consideration’ in all actions concerning them (Article 3), the ‘inherent right to life’ (Article 6), and the right of a child “who is capable of forming his or her own views … to express these views freely in all matters affecting the child” (Article 12) (United Nations 1989). However it is normal to distinguish between ‘positive’ rights, those that are recognised in law, and ‘moral’ rights, those that are recognised by some moral theory. That children have ‘positive’ rights does not then settle the question of whether they do or should have moral rights. However there are at least good political reasons why one might think that the UNCRC provides an exemplary statement – in the language of positive rights – of how children should be treated and regarded. Nevertheless the idea of children as rights holders has been subject to different kinds of philosophical criticism At the same time there has been philosophical consideration of what kinds of rights children have if they do have any rights at all. The various debates shed light on both the nature and value of rights, and on the moral status of children.
These matters, to be considered below, need also to be seen as closely tied to at least two other philosophical questions: what is childhood? (See the entry on childhood.) And, how do the putative rights of children stand in relation to the rights of those adults who, arguably, have rights over children? The first question is considered at length in Part I of Archard (2015). The second question broaches the issues of parental rights and responsibilities. (See the entry on procreation and parenthood.)
Excerpt of material borrowed from Jennifer Baker PhD’s article on this case of child abuse and deprivation:
“Barbara Bennett Woodhouse  is the L. Q. C. Lamar Chair in Law at Emory and serves as faculty advisor for the Barton Child Law and Policy Clinic.
She is one of our most eminent scholars on the topic of children’s rights. She has developed an account of five basic human rights that represent what other experts agree is crucial to the well-being of children. (Please read her excellent book on children’s rights, here(link is external).)
These are: privacy rights. While we are familiar with how these work in regard to adult lives, for children, “the basic unit of privacy is not the individual but the relationship between the child and the caregiver. “ Children, in other words, need us to respect their relationships and their capacities to form relationships.
Agency rights. Children develop voices and they have agency. They need to have a voice in matters that affect them, even if “they are not ready to take responsibility for the ultimate choice.” Children are both citizens-in-training and valuable in their own right, as they are.
Equality. Children, dependent on communities as they are, deserve access to the necessities of life that other children in the community are given.
Dignity. Children are their own persons, and “laws that penalized innocent children for the sins of theirparents,” as existed in the Victorian era, have come to look “inhumane.”
And finally, protection rights. Civilization depends on the weak being protected from the strong. Situations where children are put in danger of harm violate these children’s rights.
Woodhouse explains that children’s rights flow “from the same set of basic values” that give adults rights. We cannot, in other words, pretend adult rights are on some firmer basis than those of children.”
Do you agree?
Let us know: MyAdvocateCenter.com
Use your voice,
Deb Beacham

Children affected by divorce and/or separation fare worse, on average, on nearly every measure of health and emotional well-being including a greater risk of academic problems, alcohol and drug use, poor social skills, depression and suicide, delinquency and incarceration, and poorer physical health and early mortality. The reason for all this has much to do with the fact that one of the two most important people in a child’s life is often relegated to the role of an infrequent visitor.

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