Accommodating Children's Rights in a Post Human Rights Act Era

Published date01 May 2006
Date01 May 2006
Volume 69 May 2006 No 3
Accommodating Childrens Rights in a Post Human
Rights Act Era
Jane Fortin
This article considers why so little case lawcurrently acknowledges that children have recognis-
able rights under the European Convention on Human Rights and argues that the family
courts are not meeting the demands of the Human Rights Act1998 in this regard. It suggests
that a reinterpretationof the ‘paramountcyprinciple’ in the Children Act1989 should be accom-
panied by a radically di¡erent judicial approach to evidence relating to children’s best interests.
The article considers the di⁄culties that such an approach might produce when applied to teen-
agers intent on refusing life-saving medicaltreatment. It further argues that thecourts should call
on the substantial bodyof rights jurisprudence to provide legal and moralsupport for this revised
The implementation of the Human Rights Act 1998 (the HRA) is now part of
our legal history. Nevertheless, the domestic courts are still only £irting with the
idea that children are rights holders under the European Convention for the Pro-
tection of Human Rights and Fundamental Freedoms 1950 (the European Con-
vention).The purpose of this article is toconsider the ways inwhich domesticlaw
wouldhave to changeto accommodatea newapproachto children’s cases. Articu-
lating any evidence relating to children in terms of their rights, rather than their
welfare, would obviously require a radically di¡erent approach to judicial deci-
sion-making.This is explored, together with a suggested realignment of evidence
normally presented in terms of the child’s welfare or best interests. Lastly, the fea-
sibility of this model of working is examinedi n thecontext of the legal principles
governing teenagers’autonomy.
King’s College London. I gratefully acknowledge the helpful comments on earlier drafts of this article
from Professors Gillian Douglas, Judith Masson and Helen Fenwick, together with those of my collea-
gues Kenneth Campbell and Penney Lewis.
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(3)MLR 299^326
A haphazard approach
The domestic courts have responded to the demands of the HRA in an extraor-
dinarily haphazard manner when dealing with children’s cases. As Bainham has
pointed out, in many areas of law involving children, there has been little attempt
to articulate childrens interests as rights.
As a briefreview of the domestic case law
shows, it is only when children are themselves the litigants that the courts consis-
tently articulate th eir rights.
Parents’ challenges against state interference
Parents are entitled to use the HRA to complain over the state’s interference with
their upbringingof their children. Unfortunately, however,the phrasing of some
of the Conventions articles, particularly that of article 8, implicitly encourages
parents to see their grievances from an entirely adult standpoint.
When they do
so,both parents andcourt appear tolose sight of the fact that the children,who are
the focus of the dispute, may have rights and interes ts of their own which need
proper assessment and deliberation. The Will ia ms on case
is a case i n point. As
Baroness Hale of Richmond maintained, the case had been dominated through-
out by adult claims and adult arguments.
My Lords, this is, and always has been, a case about children, their rights and the
rights of their parents and teachers.Yet there has been no one here or in the courts
below to speak on behalf of the children . . . The battle has been fought on ground
selected by the adults . . .
In Will ia ms on, a group of fu ndamentalis t Christia ns complained about the way
that current education legislation prohibits the use of physical punishment as a
formof disciplinei n schools.
Consequently, although theycould physically pun-
ish their children themselves if they wished,
they could not request their chil-
drens teachers to use similar measures in school. The Court of Appeal paid little
attention to the childrens own position. Since the government had not claimed
that it was necessary to infringe th e parents’ rights u nder article 9(2), in order to
1 A. Bainham,‘Canwe protect children and protect their rights?’ (2002) FamLaw 279.
2 J. Fortin,‘Rights BroughtHome for Children’ (1999) 62 MLR 350, 357.
3R (on the applicationof Williamson) vSecretary of State forEducation and Employment [2005] UKHL 15
[2005] AC 246. See H. Cullen, ‘R (Williamson) vSecretary of State forEducation and Employment ^
Accommodationof Religion in Education’(2004) 16CFLQ 231 foran assessmentof thi s decision
at Court of Appeal level.
4ibid at [71].
5 See Education Act1996, s 548 (1) which e¡ectivelyprohibits all teachers from using physical pun-
ishment as a form of discipline.
6 Parents must now heed the terms of Ch ildren Act 2004, s 58.
AccommodatingC hildrens Rights
300 rThe Modern LawReview Limited 2006

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