parent and childrens rights

Question 1

meanings of rights

Answer 1

-negative liberties- the right to be free from something
-permitted activities- the right to do something not forbidden
-positive liberties- the right to have something provided, positive obligation on someone to do soemthing for you

Question 2

child focused rights

Answer 2

parental rights gives the abilitiy to make decisions to discharge parental duties

Question 3

parent focused rights

Answer 3

-an independant interest other than discharging duty
-the right to determine childs religious instruction

Question 4

parents rights

Answer 4

ways of thinking about parents rights-
-children as property historically- LJ Arden not true property (no right todestroy)
-rights are possessed in trust (no freedom to deal with them as you like entirely)

where do parent rights come from?:
-imposed by society/ other source of ethical entity?
-normal duty owed to everyone?
-parents assumed/volunteered responsibility? (hard for those who cant abort/ do you need biological component)

Question 5

should parent rights exist?

Answer 5

-Anca Gheaus 2018
-differnt structures may be better
-maybe care should be delivered by specialist rather than being allocated to parents aribtrarily
-here children will be free from parents social influences such as homophobia

Question 6

parental responibilities can also be considered parental rights

Answer 6

e.g right to contact, right to name
-also the right to make day to day decisions
-Re W 1999- up to resident parent e.g nudist parents
-R v SOS for eductation and employment 2005- lady hale, child not a child of the state, the right to raise children individually as partof a pluralistic democracy

Question 7

childrens rights:
the right to have their welfare treated as paramount in decisions regarding them

Answer 7

-the welfare of the child is paramount- children act 1989 sc1
-J v C 1970- ‘first and paramount’, weigh all factors and then go with maximising welfare
-Re P 1996- interest of parents on matter in so much that they impact the childs wellbeing (doesnt matter if parents suffer aslong as their suffering doesnt harm the children)
-Re C 2012- sending father photo of children wouldnt benefit child so not allowed
-Re G 2006- welfare of child should determine course to be followed (not helpful)

Question 8

what is a childs welfare?

Answer 8

-Re G 2012- welfare is more than just being happy means the good life and depends on relationships,court neutral on religion but must act a a reasonable contemporary parent, here against staying in jewish community as it limited asperation and future education

-Re M 2017-first instance said jewish children contact with trans mum would harm them, must adopt reasonable contemporary parent so cannot continue this discrimination and allowed contact

Question 9

exception to welfare principle

Answer 9

-not applicable when not related to childs upbringing
-leave to apply for sc8 residence order (will in the application for order)- Re A 1992
-blood test to determine paternity- Re H 1996
-deciding to commit parent to prison for violation of the order- A v N 1997

-deciding to allow a film crew to make documentary about the childs education did relate to her upbring so welfare principle- Re Z 1997

-matrimonial cases act 1973 sc25- division of property on seperation, considered but not paramount

Question 10

whos welfare for mutiple children with competing interests?

Answer 10

-Brimingham city council v H 1994- minor with child, both children with welfare, must consider the welafre of the sucject of the matter, here the baby
-Re A 2001- conjoined twins, balance is necessary as in best interest for one who would survive but in best interest for one which would die aswell, ordered seperation
-Re S 2011- must seperate interests, approved the moving of one sibling not both

Question 11

what happens where parents interests conflict with childs interests?

Answer 11

-if relating to the upbringing of children, children always win
-parents interests preserved when pricipal doesnt apply
-Re T 1997- agreed with parents against treatment as in best interest of child as hurting the parents would be hurting the child

-Re 1997- no limit on residence order as would limit mums rights to live where she wants

Question 12

problems with the welfare principle

Answer 12

-to narrow/broad consideration of welfare- Re T may be too broad
-who is best placed to choose?- judges may not be best to understand someone life and factors involved to decide, the are nt psychologists or child therapists
-lack of transparency to reason- may mask judges own views like religious views
-uncertain or necessary flexability?- able to adapt to individual cases/ society changes
-unrealistic?- may not be able to maximise childs welfare if limited recsources

Question 13

international law and childrens rights

Answer 13

united nations conventions on the rights of a child
-set of arguments not individual law
-states agree to it but there is no enforcemen tof consequence of breach
-art 1-5- define child, establish duty, consider welfare and respect parents responsibilities and freedom
-art 41- no reduction in existing rights
-R v SOS for work and pensions 2015- benefit cap, hurts people single income families a caps child benefits and tax credits, childs portions get cut off is capped, lord here said the convention should be directly applicable, even though not directly applicable can influence the courts when making human rights decisions if theres a need to, otherwise not directly applicable

-R (DA) v SOS for work and pensions 2019- does disadvantage children, not directly applicable due to parliamentary sovereignty

Question 14

childrens rights in court

Answer 14

-have a right to have their views considered (child and family reporter reports)
-the right to instruct their own solicitor (cases involving the inherent jurisidction of the court or thr children act 1989)
-CS V SBH 2019 list of factors considered here- intelligence, reasons, maturity, undertsanding, risk of harm
-Mabon v Mabon 2005- here represented seperately otherwise interferes with art 12 UNCRC
(art 12 presumption if child is sufficiently matureand able to form own views they have the right to express these)

Question 15

section 8 orders

Answer 15

orders including child arrangement, prohibited steps orders, specific issue (ask the court 1 specific questions)
-Re SC 1993- leave to apply for residence order, must understand enough to consult a solicitor then a child can initiate these proceedings themselves
-PD v SD 2015- 15 years old trans boy, successfully applied for prohibited steps order to stop parents from recieving medical info and residence order to live away

Question 16

guardians ad litem

Answer 16

-if child not competant on their own
-guardian ad litem- a party in proceedings who adocates on behalf of the child
-Re S 1993- is the child able to participate as a party in the proceedings, includes giving articulate and competant intructions if so guardian ad litem
-Re H 1994- 15 year old boy, joined case with guardian ad litem, later asked to continue on own, court said a question of competance not whether your decision is good

Question 17

childrens commissioners

Answer 17

-created by children act 2004 and children and families act 2014
-both must have special regard for the UNCRC
-job- advise parliament, monitor situations regaridng the rights of children, encourage the positive treatment of children and have some power of entru and investigation
-can be asked to investigte specific cases if it has wider implications for children
-addtional in wales- examine, review, advise, assist

Question 18

are children missing rights?

Answer 18

-holt- childhood is used to restrct rights in intolerable ways, issue of paternalism by limits a persons rights to do what is best for them
-Farson- rights are good not because of outcomes but because freedom is ideologically deemed worth risks, children may make bad decisisons but should apply to them as we value freedom to make any choice
-restrict childrens rights due to their own autonomy interests, maximises their rights at a later time

Question 19

criticisms of the welfare principles

Answer 19

1. the law has a narrow perception of welfare- science would recognises factors such as genetic, financial, eductaionak and reational as effecting welfare but the law limits the factors
2. uncertainty- gives rise to inconsistency and unpredictability (Mnookin 1975)
3. increased costs- unpredictability means its harder to negotiat a settlement and complexity of the test means the court hearings take lonnger and require more preparation
4. unfairness- gives little to no weight for the interest of the adult, Eekelarr 2002 states the test “encourages a laziness and unwillingness to pay propoer attention to all the interest that are at stake”
5. too narrow- best interest test assumes that adults know best for children and should control them
6. “benefit of the uncertainty- enables courts to produce results that are flexible and responsive to the individual needs of each child”- Gillian Gouglas 2018