Journal Article

Children's Rights: Judicial Ambivalence and Social Resistance

Carole Smith

in International Journal of Law, Policy and the Family

Volume 11, issue 1, pages 103-139
Published in print April 1997 | ISSN: 1360-9939
Published online April 1997 | e-ISSN: 1464-3707 | DOI: http://dx.doi.org/10.1093/lawfam/11.1.103
Children's Rights: Judicial Ambivalence and Social Resistance

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It has been argued that judicial decisions are likely to be informed by attention to children's welfare, thus avoiding a proper recognition of children's rights. This paper explores the debate through detailed discussion of recent cases where courts have primarily been concerned with a child's right to consent, or to refuse their consent, to medical treatment, and a child's right to initiate or complete certain legal proceedings without a guardian ad litem or next friend. While advocates of children's rights have accused the judiciary of undermining the decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986], this paper argues that the Courts are faced with a complex dilemma in attempting to balance rights and welfare which is, itself, a reflection of society's ambivalence about eroding the dependent status of children. It is possible to acknowledge the ways in which particular cases demonstrate judicial manipulation of welfare, whilst defending the judiciary's attempts to find an acceptable balance between a child's needs and rights. The discussion proceeds within the context of ideas about positive and negative freedom, the State's role in social regulation and the nature of autonomy in relation to the legal distinction between children and adults. Whilst accepting that advocates of children's rights mount a powerful argument at both conceptual and practical levels of analysis, they, together with the judiciary, balk at the final hurdle, when supporting a child's right to decide may lead to serious emotional or physical consequences.

This paper explores how progress, may be made in facilitating children's rights whilst, at the same time, attempting some explanation of legal and social resistance to enhancing rights at the expense of welfare. Although the cases examined in this paper have arisen in the English legal system, those issues relating to children's rights and welfare, in the context of social regulation and the social construction of childhood, are broadly relevant beyond the particular characteristics of English courts and legislation.

Journal Article.  0 words. 

Subjects: Family Law ; Marriage and the Family

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