THE UN CONVENTION ON THE RIGHTS OF THE CHILD: SOME CRITICAL THOUGHTS

1. THE UN CONVENTION ON THE RIGHTS OF THE CHILD: SOME CRITICAL THOUGHTS Professor David Archard, Department of Philosophy, University of Lancaster d.archard@lancaster.ac.uk

2. Aims On the idea that children have rights On the status of the UNCRC Universal rights and cultural assumptions The central tension of the UNCRC Hearing the child: the Gillick cases Why hear the child? The moral and political status of the child and the adult

3. Moral and Legal Rights The existence of the CRC does not settle the question of whether, morally, children ought to have rights Two kinds of philosophical scepticism: Do children have rights? Do children have the rights they are given by the CRC?

4. Children have no rights • James Griffin; Onora O’Neill; Laura Purdy • Children lack the qualifying capacities to be rights-holders • Giving children rights contributes to a harmful rights-inflation. • Giving children rights is harmful to their (and future adults’) interests • The interests of children can be adequately protected without the concession of rights

5. John Locke on children • ‘Children, I confess are not born in this full state of Equality, though they are born to it’ (Two Treatises of Government, 1698, II, Chapter vi, §55; emphasis added). • ‘To turn him loose to an unrestrain’d Liberty, before he has Reason, to guide him, is not the allowing him the priviledge of his Nature, to be free; but to thrust him out amongst Brutes, and abandon him to a state as wretched, and as much beneath that of a Man, as theirs’ (§63)

6. The ‘political’ case for supporting the CRC • Imperfect laws may be better than nothing or aiming only for the ideal • The CRC is widely ratified • The CRC has been hugely influential in the way that we think about children • On the whole the CRC gets its broadly right about what ought to be done for children • Conclusion: if you want to protect the interests of children everywhere then the best way to do so is by supporting the CRC

7. Universal values and cultural differences Standard criticism of the UNCRC is that it falsely assumes the global universality of children’s needs and interests Thereby, at best, neglecting differences between cultures, and At worst, being an instrument for the imposition of Western values onto non-Western societies.

8. Universal values and cultural differences • Statements of the importance of promoting children’s needs or interests can be consistent with recognising that these needs and interests take a different form in different contexts • ‘Everywhere we should do everything we can that is best for children’ does not mean: • ‘What is best for children is that we should do the same thing everywhere for children’

9. Universal values and cultural differences • But we might recognise that some statements of what is best for children are insensitive to context • Article 32 • 1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.

10. Universal values and cultural differences • Or a certain Western view of the nuclear family: • Article 18 • 1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.

11. Forms of scepticism about children’s rights Children do not have rights Children do not have the same rights wherever they live in the world Children do not have the rights that the CRC gives them There are, according to this last criticism, real tensions between the rights in the CRC

12. The Three Ps • Provisionthe right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health’ (Article 24); ‘the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development’ (Article 27); and ‘the right of the child to education’ (Article 28). • Protectionthe right of the child to be protected ‘from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation’ (Article 19); to be protected ‘from all forms of sexual exploitation and sexual abuse’ (Article 34); and ‘to be protected from economic exploitation and from performing any work that is likely to be hazardous’ (Article 32). • Participation the rights to ‘freedom of expression’ (Article 13); to ‘freedom of thought, conscience and religion’ (Article 14); and ‘to freedom of association and to freedom of peaceful assembly’ (Article 15).

13. PROTECTING ADULTS & CHILDREN Adults, unlike children, can choose to be harmed Children as a group, and by comparison with adults, are more vulnerable to the kinds of treatment against which they need to be protected and are less able to defend themselves against ill-use.

14. THE CENTRAL TENSION:EMPOWERMENT v. PROTECTION • Articles 3 and 12 state, respectively, that • in all matters affecting the child ‘the best interests of the child shall be a primary consideration’; and • that ‘the child who is capable of forming his or her own views’ has ‘the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.’

15. Article 3 • It does not use the word ‘right’. • The key phrase is ‘a primary [as opposed to a ‘paramount’] consideration • The best interest principle stated in its generality in Article 3 is to be found endorsed and given particular effect in other articles which deal with the separation of children from their parents (9, 20 and 31), the parental role (18), adoption (21) and the subjecting of children to legal proceedings (40).

16. Gillick- competence • The English House of Lords resolved in 1986 that a child, rather than his parent, has, in the words of Lord Scarman, a right ‘to make his own decision when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’

17. An important contrast • Gillick: • The child has a right ‘to make his own decision when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’ • Threshold of enough understanding or maturity • CRC (Article 12) • ‘the child who is capable of forming his or her own views the right’ has the right ‘to express those views freely in all matters affecting the child, • the views of the child being given due weight in accordance with the age and maturity of the child. • Weighting of maturity

18. Five post-Gillick cases • In Re E (A Minor) [1990] a 153/4-year-old boy refused to consent to the transfusions deemed necessary to treat his leukaemia. He and his family were devout Jehovah’s Witnesses and thus refused the treatment on religious grounds. • In Re R (A Minor) [1991] a 15-year-old girl who had suffered increasingly serious episodes of mental illness was detained in a hospital where, ‘in a lucid interval’, she refused the proposed treatment which included the administration, against her will, of certain drugs. • In Re W [1992] the authorities sought to admit a 15-year-old suffering from anorexia nervosa, against her wishes, to a unit specialising in the treatment of eating disorders. • In Re L [1998] a 14-year-old who suffered extremely serious burns in an accident refused medical treatment, blood transfusions, because she was a Jehovah’s Witness. • In Re M [1999] a 151/2-year-old refused a life-saving heart transplant essentially on the grounds that she did not want to take tablets for the rest of her life and that she did not want to have someone else’s heart in her body

19. The court’s reasoning • The courts acknowledged that all five children were ‘capable of forming [their] views’, and had clear, and clearly expressed, views. • The courts asked a simple question: is the child competent? Does the child display ‘a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’? The courts used the threshold understanding of a child’s capacity. • Children who express views which conflict with a judgment of their best interests must be incompetent.

20. The five post-Gillick cases • In Re E (A Minor) [1990] a 153/4-year-old boy refused to consent to the transfusions deemed necessary to treat his leukaemia • In Re R (A Minor) [1991] a 15-year-old girl who had suffered increasingly serious episodes of mental illness was detained in a hospital where, ‘in a lucid interval’, she refused the proposed treatment which included the administration, against her will, of certain drugs. • In Re W [1992] the authorities sought to admit a 15-year-old suffering from anorexia nervosa, against her wishes, to a unit specialising in the treatment of eating disorders. • In Re L [1998] a 14-year-old who suffered extremely serious burns in an accident refused medical treatment, blood transfusions, because she was a Jehovah’s Witness. • In Re M [1999] a 151/2-year-old refused a life-saving heart transplant essentially on the grounds that she did not want to take tablets for the rest of her life and that she did not want to have someone else’s heart in her body • The boy is judged ‘of sufficient intelligence to be able to take decisions about his own well-being’ but is nevertheless thought unable ‘fully to grasp’ the ‘whole implication of what the refusal of [the] treatment involves. • The judge finds the girl to be ‘sectionable’ even though the consultant child psychiatrist is quoted as reporting that sheis of sufficient maturity and understanding to comprehend the treatment being recommended and is currently rational • The judge is clear that irrational beliefs are no bar to being ‘Gillick competent’. However her condition, anorexia nervosa is one that ‘destroy[s] the ability to make an informed choice’( In re W 1992 769). • The court asserted that the girl’s ‘sheltered life’ had left her with a ‘limited experience of life’; in consequence she was necessarily restricted in her ‘understanding of matters which are as grave as’ her medical situation’ • The girl is credited with being ‘intelligent’, and she certainly offers credible reasons for refusing a life-saving operation. She also demonstrates a clear understanding of what death means. Yet the court judged her be ‘overtaken’ and ‘overwhelmed’ by events such that ‘she has not been able to come terms with her situation’.

21. Unsatisfactory judicial reasoning • The children are making poor judgments. • The judgments are poor because they are at variance with the professional assessment of their best interests. What is best for the children is to have the medical treatment in question and yet the children wish to refuse such treatment. • Because the children are making such poor judgments they must be incompetent, not possessed of sufficient understanding and intelligence to make up their own minds. • Finally, because the children are incompetent their views should count for nothing, they should carry no weight in any overall determination of the appropriate outcome.

22. The creative tension between empowerment and protection The child as both in need of protection and as showing some but not all of the capacities of an adult decision maker. Best interest always trumps the child’s views. Yet...... Articles 3 and 12 have equal status And what is the point of according the child a hearing if her views never prevail

23. The merely instrumental value of hearing the child First, knowing what a child thinks improves our initial diagnosis of what is best for the child. Second, knowing what a child wants to happen allows us to estimate the costs of implementing our judgement when this goes against the child’s wishes.

24. Why hear the child? Imagine we could work out what was best for the child without any need to hear the child’s views. Or we can know in advance of a child that she is not sufficiently mature for her views to count. In both cases there would be no imperative to hear the child.

25. Why hear the child? • Views as authoritative (X’s wanting to do p is sufficient reason to let X do p) or • Consultative: X’s wanting to do p is not a sufficient reason to let X do p, but it • Assists us in determining what is best for X • But children have a fundamental right to be heard because • A child is a source of views in her own right and this should be recognised, even if the content of those views is not determinative of the outcome and even if the content of those views is not given a great deal of weight

26. The status of adult & child • The distinctive moral and political status of children as not-yet-adults. They have interests that must be protected whatever they themselves may choose; and yet they also have a right to be considered the source of views about those interests • Adults have a right to lead their own lives. Yet we have an obligation to promote their best interests • In both child and adult there is a tension between a recognition of their right to choose for oneself and our duty to do the best for them

27. Conclusions I We can accept that children ought to have the rights outlined in the CRC. We can do so even if we see merit in philosophical scepticism either about the idea that children have rights, or about the particular list of rights accorded to them by the Convention. There are good political reasons for trying to give effect to a document which does as good job as any available in laying out the appropriate ways to protect and promote the interests of children. The idea that all children have interests that ought to be recognised and protected is not a ‘Western’ assumption Some understandings of what rights all children have may be guilty of a biased cultural understanding. Whatever the merits of the CRC it would be a mistake to engage in ‘CRC-worship’, and believe that this Convention is a perfect statement, consistent and coherent in all respects, of what children require.

28. Conclusions II • There are real tensions between the ways in which the different rights given to children can be justified; and thus real conflicts in the practical recommendations these different rights will yield. • In particular there is a major tension between the requirement to promote the best interest of a child and a requirement to give some weight to the views of a child. This is most evident in precisely those cases where what the child wants conflicts with adult judgments of what is best. • We need to take seriously the requirement that we hear the child • The fundamental error would be to deny or strive to eliminate this tension. Rather it should be seen as a creative and productive tension, one that arises precisely from the particular status of the child as not-yet-adult. • Indeed that same tension, properly understood, can yield insights into how we understand the status of adults.