Chapter

Courts and the Construction of Childhood: A New Way of Thinking

John Tobin

in Law and Childhood Studies

Published in print March 2012 | ISBN: 9780199652501
Published online May 2012 | e-ISBN: 9780191739217 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199652501.003.0005

Series: Current Legal Issues

Courts and the Construction of Childhood: A New Way of Thinking

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This chapter explores what is meant by a new way of judicial thinking in which children are conceived of as independent subjects with rights and entitlements as opposed to mere objects in need of protection and charity. It consists of four parts. Part 5.1 provides an overview of the ways in which courts have constructed childhood over time. It suggests that three broad models have emerged — a proprietary approach, a welfare approach, and more recently a rights-based approach. Part 5.2 details the features of this newest way of thinking about children and Part 5.3 provides an overview of the ways in which courts engage with this model. It is argued that courts' engagement with a rights-based approach can be classified along a spectrum that ranges from the non-existent (or invisible) to the substantive with a range of approaches between these extremes. Finally, Part 5.4 identifies the legal, institutional, and social factors that influence the extent to which courts engage with this new way of thinking whereby children are conceived of as rights holders. It argues that we are on the verge of a new epoch in which the construction of childhood by courts will increasingly be viewed through the prism of rights.

Keywords: judicial thinking; children's rights; independent subjects; courts; rights-based approach

Chapter.  11977 words. 

Subjects: Family Law

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