The development of

children’s legal rights

“The right to make mistakes?”

Nathan Loynes

The following points are interpretations of key points

as raised by John Eeekelar’s, The Emergence of

Children’s Rights. (Oxford Journal of Legal Studies, Vol. 6., (Summer, 1986),No. 2, pp. 161-182)

A Definition of Legal Rights

A law creates a right if it is based on and expresses the view that

someone has an interest which is sufficient ground for holding another

to be subject to a duty; and, again, that to be a rule, conferring a right it has to be motivated by a belief in the fact that someone's interest should be protected by the

imposition of duties on others. (Joseph Raz, 1984)

Early law viewed children primarily as agents for the devolution of property

Hall v. Hollaender (1825)

The case found that

injury to a child of two

would not justify

compensation

because the child so

young was manifestly

unable to perform any

services for the father.

Historically, the

Law was

content to rely

on the natural

moral sense of

parents to fulfil

their duties

towards their

children

Crumbling Social Stability

Industrial Revolution Coincidences

Stop those children from

burdening others!

Legislation to protect children from parent’s sending them to work

Unless he seriously threatened the child's well-being, the father's rights were paramount.

re Aagar-Ellis (1883)

“Father

knows best;

don’t

interfere”

The first Prevention of Cruelty to and the

Protection of Children Act 1889

Created an offence if anyone

over 16 who had custody,

control or charge of a boy

under 14 or a girl under 16

wilfully ill treated, neglected or

abandoned the child in a

manner likely to cause

unnecessary suffering or injury

to its health.

To guess what a child might retrospectively have

wanted once it reaches a position of maturity?

“Could a child plausibly claim

that he should be given a better

chance than other children?”

The problem is that a child's autonomy interest may conflict with their

developmental interest and even their basic interest.

Basic

Interest

Developmental

Interest

Autonomy

Interest

S.1 The Children and Young Persons Act 1969

“his proper development is being avoidably prevented or neglected or

his health is being avoidably impaired or neglected or he is beingill-treated;... and also that he is in need of care and control which he is unlikely to receiveunless the court makes an order under this section . . . the court may if it thinksfit make such an order.”

The State May Intervene

“Avoidability”

Developmental Rights

The Guardianship of Infants Act 1925

The Children Act 1989

Gillick v West Norfolk and

Wisbech Area Health Authority

[1985] (1985) 3 All ER 402 (HL).

"children will now have, in wider measures than ever

before, that most dangerous but most

precious of rights: the right to make their own

mistakes”.

John Eekelaar, 1986, The Emergence of Children’s Rights p. 192