CHILDREN AS PROPERTY?

DOIhttp://doi.org/10.1111/j.1468-2230.1988.tb01759.x
Publication Date01 May 1988
AuthorJonathan Montgomery
CHILDREN
AS
PROPERTY?
WHILE
there are many different interpretations of the importance
and functions of parental rights, there is a fundamental distinction
to be made between two different theories. The first relates
parental power to its purpose, usually justifying it by reference to
some
sort
of paternalism, and holds that the family is a community
of persons with individual interests which must be protected. There
must, therefore, be limits to what parents may do. The second
regards the family as a sort of mini-state, with near absolute power
vested in its heads, the parents.’ Under the first theory parents
hold their power as agents or trustees on behalf of the children,
under the second the children are treated as their property.
Most modern commentators assume that the primary justification
is to be found in terms of child protection. Children are
incapacitated in law because they do not have the maturity required
to order their own lives and participate in political life. This is
justified by reference to lack of rationality and “capacity to form
coherent
purpose^,"^
or lack of understanding and e~perience.~
As
a result children “who are still in a state to require being taken
care of by others, must be protected against their own actions as
well as against external inj~ry.”~ In order that children may be
so
protected and nurtured out of their state of disability, rights are
given to their parents.’
This approach is vulnerable to criticisms of inconsistency.
Is
it
possible to identify characteristics common to children, but not to
adults, which will justify such a paternalistic approach? If rationality
and understanding are the crucial qualities, then to take the
paternalistic justifications seriously it would be necessary to
enfranchise some children and disenfranchise some adults.6 These
are not qualities which are suddenly acquired at the age of
majority, but which evolve gradually.
For legal purposes, of course, the good of moral consistency
must be weighed against other principles of justice.
A
degree of
certainty is needed to allow life to proceed without constant
recourse to the courts. This principle must not be exaggerated,
however, and it is unnecessary to follow the Dutch example of
declaring minors incapable of legally valid action.’ Indeed English
and Wrongs
of
Children
(1983) Chap. 2.
A
useful introduction to these areas is to be found
in
M. D. A. Freeman
The
Rights
Scarre, “Children and Paternalism” (1980) 55
Philosophy
117, 119.
Schrag, “The Child in the Moral Order” (1977) 52
Philosophy
167.
J.
S.
Mill,
On Liberfy
(1859) Everyman edition p.73.
B. M. DIckens, “Modern Function
and
Limits
of
Parental Rights” (1981) 97 L.Q.R.
462.
See generally in this issue,
J.
Hams, “The Political Status
of
Children” in
K.
Graham (ed.),
Contemporary Political Philosophy
(1982).
Art
234
I
BW.
See M. Rood de Boer, “Decision Making About Health Care and
Medical Treatment of
Minors”
in Eekelaar and Katz (ed.),
The Resolution
of
Family
Conflict
(1984).
323
324
THE
MODERN
LAW
REVIEW
[Vol.
51
law is not
so
rigid in its definition of minors as the Netherlands.
Children come of age for different purposes at different times,s a
reflection
of
their gradual development.
If
the law can embody this
flexibility it will be closer to the reality of childhood. This approach
would support Lord Denning’s view, vindicated by the House
of
Lords in the
Gillick
decision, that custody is “a dwindling right
which the courts will hesitate to enforce against the wishes
of
the
child.
”9
These considerations would point towards the first model of
parental rights. In the context of medical treatment, for example,
while children are incapable of understanding the nature of
treatment and therefore in need of protection against receiving it
against their interests, only a parent may give a legally effective
consent; thus they have a right of complete control. As children
mature they begin to take decisions for themselves and this will
facilitate their continuing growth. As children mature they will
receive a corresponding emancipation from parental power in
accordance with the dwindling justification for paternalism.
Considering whether juvenile self-determination should be allowed
in the field of religious belief, Amy Gutman has written,
“The justification for defining adolescents as legal minors is
that their own capacities for free exercise are limited and can
be more fully developed by paternalistic supervision. We
assume that as those capacities gradually develop, the freedom
to exercise them stimulates their further development. When a
child is mature enough to distinguish his religious beliefs from
those
of
his parents, his beliefs ought to be c~nsulted.”~~
There is a further reason for preferring the analysis which treats
the parent as an agent for the child rather than as owner. Judith
Ennew’s work on the exploitation of children has demonstrated the
vulnerability
of
minors within the family unit.
l1
Children need to
be protected not only against outsiders and themselves, but also
against their parents.
If
the first model of parental rights
is
used,
this too can be facilitated. As children acquire the rational and
emotional capacities for independence, they will also be given a
greater ability to determine the course of their own lives.
If
they
are treated as the property of their parents they will be at the
mercy of a parent who is not prepared to facilitate a child’s growth
towards self-determination and independence. In many areas
of
family life this will necessarily be the case, subject to intervention
by a court, or local authority, but the need for this might be
*
M.
D. A. Freeman “Coming of age?”
(1977)
L.A.G.
Bull.
137-8.
Chidrens
Legal
lo
“Children, Paternalism, and Education: a liberal Argument”
(1980) 9
Philosophy
l1
“The Protection
of
Children” (Conference report)
(1985)
Vol.
1,
110.3
Anthropology
Centre “At what age can
I
.
.
.?”
(1983).
“A quel &ge
. .
.”
(1988) 43
Childright at
p.11.
and Public Affairs
338,
at
p.355.
Today,
p.24.
The Sexual Exploitation
of
Children
(1986).
Hewer
v.
Bryant
(19701
1
Q.B.
357
at
p.369.

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