interrogate some of the central questions posed by these competing theories and assess whether the idea of human rights for children can be justified. It consists of three parts. Part I considers the preliminary question of whether such an inquiry is necessary. It concludes that an examination of the conceptual foundations of children’s rights serves two critical functions – one practical and one philosophical. From a practical perspective, it has the capacity to assist in resolving broader dilemmas with respect to the meaning of these rights and encourage more reflective practice by proponents of children’s rights (Reynaert 2012, 156). It also has the potential to dampen opponents’ skepticism about the idea of children’s rights by establishing a ‘secure intellectual standing’ that can address its ‘conceptual doubts.’ (Sen 2004, 317.)Tobin comments
Can the idea of human rights for children be justified? Does an answer to this question really matter? Children’s rights are, after all, already recognized in international law, most notably the Convention on the Rights of the Child (‘CRC’). They are increasingly included in national constitutions (Tobin 2005) and considered by judicial bodies at the international, regional and domestic levels (Tobin 2009; Sloth Neilsen 2008). They are also increasingly used as a policy framework by governments (Lundy 2012; Stalford 2011), a research paradigm by scholars (Reynaert 2009) and as an advocacy tool by civil society worldwide (Fernando 2001; Tobin 2011).
Despite this widespread engagement with the discourse of children’s rights some still believe that the idea of children’s rights has ‘failed to secure a coherent… intellectual foundation’ (Minnow 1995; Guggenheim 2005, ix) and ‘remains largely undertheorised’ (Dixon & Nussbaum 2012). This is not to suggest that the conceptual foundations of children’s rights have been entirely neglected. This may have been the case twenty-five years ago, when Michael Freeman lamented the absence of a ‘reasoned normative thesis’ to explain the moral grounds for children’s rights.(Freeman 1987, 300). In the intervening years, scholars, including Freeman himself, have increasingly sought to answer his question, ‘what is the moral justification for giving rights to children?’ (Freeman 1987, 304). The literature tends to fall into three broads camps – those who support the idea of rights for children because of its role in securing their dignity (Freeman 1992, 2007, 2010; Eekelaar 2008; Archard 2004); those who oppose the idea of rights for children because of their lack of capacity (Griffin 2009; Purdy 1994); and those who oppose the idea because of concerns such as the impact of rights on the family structure (Guggenheim 2005; Goldstein et al 1998; Seymour 2005), the Western origins of human rights, or a preference for alternative discourses such as obligations (O’Neil 1988, 2002) or an ethic of care (Arneil 2002; King 1997).
This paper aims to interrogate some of the central questions posed by these competing theories and assess whether the idea of human rights for children can be justified. It consists of three parts. Part I considers the preliminary question of whether such an inquiry is necessary. It concludes that an examination of the conceptual foundations of children’s rights serves two critical functions – one practical and one philosophical. From a practical perspective, it has the capacity to assist in resolving broader dilemmas with respect to the meaning of these rights and encourage more reflective practice by proponents of children’s rights (Reynaert 2012, 156). It also has the potential to dampen opponents’ skepticism about the idea of children’s rights by establishing a ‘secure intellectual standing’ that can address its ‘conceptual doubts.’ (Sen 2004, 317.)
Part II explores whether the idea of human rights for children under the CRC can be justified. A focus on the CRC has been adopted because, although this instrument has been described as ‘the unavoidable contemporary context for thinking about the status of children’ (Archard 2004, 218), its conceptual foundations have escaped the close attention of commentators. It will be argued that there is an overlapping consensus as to the conceptual foundations of children’s rights under the CRC. This consensus is facilitated by a conception of dignity in which all human beings, including children, have unique value and a conception of children as being vulnerable relative to adults yet possessing an evolving capacity for agency and autonomy. It is this conception of children, which is empirically grounded and socially constructed, that provides the foundation for the ‘special’ human rights that are granted to children under international law.
Moreover, this conception of human rights for children is grounded in an interest theory rather than the rival will theory of rights. Children may sometimes lack the capacity to exercise their rights but it is their interests, not their capacity, which found their rights. With respect to the determination of which interests justify elevation to the status of a human right, a social interest theory is preferred to other explanations, such as an ‘urgent’ (Beitz 2005, 109-10) or ‘basic’ interest theory (Buchanan & Hessler 2009, 213). This social interest theory consists of both descriptive and substantive dimensions. The former refers to the deliberative process by which interests are elevated to the status of rights, whereas the latter demands that this process should include both rights-holders and duty-bearers. However, this requirement creates a serious dilemma when seeking to justify the CRC conception of rights, because the drafting process was dominated by Western states and completely excluded children. Part III therefore uses the social interest theory of right to assess whether the conception of rights under the CRC can be justified. It concludes that this is the case and that this instrument is capable of producing a culturally sensitive, dynamic, inclusive and relational conception of rights that remedies many of the deficiencies associated with the traditional conception of human rights as being Western, adult-centric, individualistic trumps.The national Attorney-General has meanwhile commissioned the Family Law Council to report on 'Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems'.
The Council's review is cover the following, with an interim report in 2015 and a final report in 2016.
(1) The possibilities for transferring proceedings between the family law and state and territory courts exercising care and protection jurisdiction within current jurisdictional frameworks (including any legal or practical obstacles to greater inter-jurisdictional co-operation).
(2) The possible benefits of enabling the family courts to exercise the powers of the relevant state and territory courts including children’s courts, and vice versa, and any changes that would be required to implement this approach, including jurisdictional and legislative changes.
(3) The opportunities for enhancing collaboration and information sharing within the family law system, such as between the family courts and family relationship services.
(4) The opportunities for enhancing collaboration and information sharing between the family law system and other relevant support services such as child protection, mental health, family violence, drug and alcohol, Aboriginal and Torres Strait Islander and migrant settlement services.
(5) Any limitations in the data currently available to inform these terms of reference.
