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A theory of children's decisional privacy

Published online by Cambridge University Press:  05 April 2021

Georgina Dimopoulos
Affiliation:
Swinburne Law School, Swinburne University of Technology, Melbourne, Australia
Corresponding

Abstract

Decisional privacy offers individuals the freedom to act and to make important decisions about how they live their lives, without unjustifiable interference from other individuals or the state. Children's perceived vulnerability, incapacity for rational decision-making and dependence on adults have been used to justify depriving children of decisional privacy rights and subjecting them to the exercise of adult power over the conditions of their lives. The aim of this paper is to articulate a theory of children's decisional privacy. It is argued that decisional privacy is valued as a condition that enables individual autonomy. A relational, gradual conception of autonomy is advanced, to explain how children can be recognised as having the capacity for autonomy, and in some circumstances, actual autonomy. This paper presents four fundamental principles of a children's rights approach to decisional privacy, which collectively serve to enhance children's meaningful participation in decision-making about their best interests, consistently with children's evolving capacities and the receipt of appropriate parental direction and guidance. The theory developed in this paper presents an opportunity for adult decision-makers to reflect upon how they make decisions for and about children, and how children can play a meaningful role in those decision-making processes.

Type
Research Article
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of The Society of Legal Scholars

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Footnotes

Lecturer, Swinburne Law School, Swinburne University of Technology. PhD (Melb), LLB (Hons) (Melb), BA (Media & Comm) (Melb), GDLP (College of Law). This research was supported by an Australian Government Research Training Program (RTP) scholarship. The author thanks Professor John Tobin and Associate Professor Andrew Roberts for their assistance with developing ideas that formed part of this paper; attendees at the Postgraduate Workshop of the 2019 Australasian Society of Legal Philosophy Conference for their constructive feedback on an earlier draft; and the two anonymous reviewers for their insightful comments and suggestions.

References

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18 See D Solove ‘Conceptualizing privacy’ (2002) 90 California Law Review 1088; Solove, above n 9; H Nissenbaum Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford: Stanford Law Books, 2010).

19 J Jarvis Thomson ‘The right to privacy’ (1975) 4 Philosophy and Public Affairs 295 at 306 and 312–313. For criticisms of Thomson's view, see DeCew, above n 11, pp 3 and 29, citing W Parent ‘A new definition of privacy for the law’ (1983) 2 Law and Philosophy 305 at 307; T Scanlon ‘Thomson on privacy’ (1975) 4 Philosophy and Public Affairs 315; Reiman, above n 17, at 28.

20 J Eekelaar ‘The emergence of children's rights’ (1986) 6 Oxford Journal of Legal Studies 161 at 162; BB Woodhouse ‘Hatching the egg: a child-centered perspective on parents’ rights’ (1992) 14 Cardozo Law Review 1747 at 1810–1811.

21 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 170 per Lord Fraser (Gillick).

22 Gillick, ibid, at 183–184 per Lord Scarman.

23 BB Woodhouse ‘“Who owns the child?” Meyer and Pierce and the child as property’ (1992) 33 William and Mary Law Review 995 at 1038–1039. See Children Act 1989, s 1(1), (3).

24 B Rossler The Value of Privacy (Oxford: Polity, 2005) p 43.

25 DeCew, above n 11, pp 75–78; A Allen Uneasy Access: Privacy for Women in a Free Society (Totowa, NJ: Rowman & Littlefield, 1988) p 15; Rossler, above n 24, p 9; Kang, above n 13, at 1202–1203.

26 Rossler, above n 24, pp 142–143 and 152–153. See also Semayne's Case, 5 Co Rep 91, 195 (1604) (‘That the house of every one is to him as his … castle and fortress as well as for his defence against injury and violence, as for his repose’).

27 DeCew, above n 11, pp 75–76; Rossler, above n 24, pp 111–141; Nissenbaum, above n 18.

28 DeCew, above n 11, pp 77–78; Rossler, above n 24, pp 79–110.

29 S Boyd ‘Challenging the public/private divide: an overview’ in S Boyd (ed) Challenging the Public/Private Divide: Feminism, Law, and Public Policy (Toronto: University of Toronto Press, 1997) pp 3 and 8–10.

30 See F Olsen ‘The family and the market: a study of ideology and legal reform’ (1983) 96 Harvard Law Review 1497 at 1499–1501; Boyd, above n 29, p 3.

31 S Kim ‘Reconstructing family privacy’ (2006) 57 Hastings Law Journal 557 at 581.

32 Rossler, above n 24, pp 43 and 50–51.

33 Ibid, p 51.

Ibid

34 J Christman and J Anderson ‘Introduction’ in J Christman and J Anderson (eds) Autonomy and the Challenges to Liberalism (Cambridge: Cambridge University Press, 2005) p 3. See also Rossler, above n 24, pp 53–60.

35 Rossler, above n 24, p 44.

36 T Hobbes Leviathan, ed C B Macpherson (Harmondsworth: Penguin, 1968) p 261 ff.

37 J Griffin On Human Rights (Oxford: Oxford University Press, 2008) p 226.

38 Ibid, pp 150–151.

Ibid

39 Ibid, p 151.

Ibid

40 Rossler, above n 24, pp 51–52.

41 Griffin, above n 37, pp 32 and 150; E Mitnick Rights, Groups, and Self-Invention: Group-Differentiated Rights in Liberal Theory (Aldershot: Ashgate, 2006) p 21.

42 See Nissenbaum, above n 18, p 82; Griffin, above n 37, p 223; Rossler, above n 24, pp 72–73.

43 Rossler, above n 24, pp 72 and 81.

44 J Raz The Morality of Freedom (New York: Oxford University Press, 1986) p 369.

45 H Reece Divorcing Responsibly (Oxford: Hart Publishing, 2003) p 13.

46 See for example K O'Donovan Sexual Divisions in Law (London: Weidenfeld and Nicolson, 1985); E Gamarnikow et al (eds) The Public and the Private (London: Heinemann, 1983); C Pateman ‘Feminist critiques of the public/private dichotomy’ in A Phillips (ed) Feminism and Equality (Oxford: B Blackwell, 1987) p 103; M Thornton (ed) Public and Private: Feminist Legal Debates (Melbourne: Oxford University Press, 1995).

47 See for example J Tobin ‘Understanding children's rights: a vision beyond vulnerability’ (2015) 84 Nordic Journal of International Law 155 at 161; M Freeman ‘The human rights of children’ (2010) 63 Current Legal Problems 1; J Eekelaar Family Law and Personal Life (Oxford: Oxford University Press, 2007) ch 7.

48 Tobin, above n 47, at 161.

49 Fortin, above n 5, p 19, citing R Lindley ‘Teenagers and other children’ in G Scarre (ed) Children, Parents and Politics (Cambridge: Cambridge University Press, 1989) p 75.

50 See J Raz ‘Legal rights’ (1984) 4 Oxford Journal of Legal Studies 1; N MacCormick ‘Children's rights: a test-case’ in N MacCormick (ed) Legal Right and Social Democracy: Essays in Legal and Political Philosophy (Oxford: Clarendon Press, 1982) p 154; MH Kramer ‘Rights without trimmings’ in MH Kramer et al (eds) A Debate Over Rights: Philosophical Enquiries (Oxford: Clarendon Press, 1998) p 7; Freeman, above n 47, at 21; J Tobin ‘Justifying children's rights’ (2013) 21 International Journal of Children's Rights 395 at 403; RE Goodin and D Gibson ‘Rights, young and old’ (1997) 17 Oxford Journal of Legal Studies 185.

51 UNCRC, Preamble.

52 See Raz, above n 50, at 5; MacCormick, above n 50, p 154; Raz, above n 44, pp 165–192.

53 I acknowledge, but do not engage with, different approaches in the scholarship to determining the basis for justifying interests as rights: See for example Raz, above n 44, pp 176–183; Griffin, above n 37, pp 179–187; CR Beitz The Idea of Human Rights (Oxford: Oxford University Press, 2009) pp 109–110.

54 D Archard Children: Rights and Childhood (London: Routledge, 2nd rev edn, 2004) p 48.

55 See JS Mill On Liberty, ed Edward Alexander (Peterborough: Broadview Press, 1999) p 52 (‘Those 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 injury’).

56 B Arneil ‘Becoming versus being: a critical analysis of the child in liberal theory’ in Archard and Macleod, above n 7, pp 70–71. See also Freeman, above n 47, at 9.

57 Archard, above n 54, p 85.

58 Ibid. See also M Freeman The Moral Status of Children: Essays on the Rights of the Child (The Hague: Martinus Nijhoff, 1997) pp 34–35; LD Houlgate ‘Children, paternalism, and rights to liberty’ in O O'Neill and W Ruddick (eds) Having Children: Philosophical and Legal Reflections on Parenthood (New York: Oxford University Press, 1979) p 274.

Ibid

59 Tobin, above n 50, at 403; Fortin, above n 5, p 13; TD Campbell ‘The rights of the minor: as person, as child, as juvenile, as future adult’ in P Alston et al (eds) Children, Rights and the Law (Oxford: Clarendon Press, 1992) p 5.

60 Children Act 1989, s 105(1); Family Law Reform Act 1969, s 1.

61 See for example Children and Young Persons Act 1933, s 50 (age of criminal responsibility is ten years); Family Law Reform Act 1969, s 8(1) (children who have reached 16 years of age can consent to surgical, medical and dental treatment ‘as if [they] were of full age’).

62 [1986] AC 112.

63 Ibid, at 188–189 per Lord Scarman.

Ibid

64 Ibid, at 186.

Ibid

65 Ibid, at 171 per Lord Fraser.

Ibid

66 Fortin, above n 5, p 94; A Daly Children, Autonomy and the Courts: Beyond the Right to be Heard (Leiden: Brill, 2017) pp 167–171.

67 J Tobin ‘Judging the judges: are they adopting the rights approach in matters involving children?’ (2009) 33 Melbourne University Law Review 579 at 600. See also M Freeman ‘Rethinking Gillick’ (2005) 13 International Journal of Children's Rights 201 at 206–208, 211–212.

68 P Alderson ‘Giving children's voices “due weight” in medical law’ (2018) 26 International Journal of Children's Rights 16 at 21; D Archard and M Skivenes ‘Balancing a child's best interests and a child's views’ (2009) 17 International Journal of Children's Rights 1 at 10; N Thomas and C O'Kane ‘When children's wishes and feelings clash with their “best interests”‘ (1998) 6 International Journal of Children's Rights 137 at 150–151.

69 Tobin, above n 47, at 158.

70 See J Locke Two Treatises of Government and a Letter Concerning Toleration, ed I Shapiro (New Haven, CT: Yale University Press, 2003) p 125, §61; J Rousseau The Social Contract, Or Principles of Political Right, tr HJ Tozer (London: George Allen & Unwin, 1948) p 101; Mill, above n 55, p 52.

71 See for example HLA Hart ‘Are there any natural rights?’ (1955) 64 Philosophical Review 175; C Wellman Real Rights (New York: Oxford University Press, 1995); H Steiner An Essay on Rights (Oxford: Blackwell, 1994); LW Sumner The Moral Foundation of Rights (Oxford: Clarendon Press, 1987).

72 Archard, above n 54, p 58.

73 Brighouse, above n 7, p 31.

74 Griffin, above n 37, p 83.

75 Hart, above n 71, at 181.

76 C Macleod ‘Are children's rights important?’ in E Brake and L Ferguson (eds) Philosophical Foundations of Children's and Family Law (Oxford: Oxford University Press, 2018) pp 200–201.

77 M Freeman The Rights and Wrongs of Children (Dover, NH: Frances Pinter, 1983) p 57.

78 J Tobin ‘Fixed concepts but changing conceptions: understanding the relationship between children and parents under the CRC’ in MD Ruck et al (eds) Handbook of Children's Rights: Global and Multidisciplinary Perspectives (New York: Routledge, 2017) p 55.

79 S Nakata Childhood Citizenship, Governance and Policy: The Politics of Becoming Adult (London: Routledge, 2015) p 165; Arneil, above n 56, p 70.

80 J Cohen Configuring the Networked Self (New Haven, CT: Yale University Press, 2012) p 113.

81 R Ludbrook ‘Children and the political process’ (1996) 2 Australian Journal of Human Rights 278 at 283.

82 P Parkinson and J Cashmore The Voice of a Child in Family Law Disputes (Oxford: Oxford University Press, 2008) p 4.

83 J Tobin and S Varadan ‘Article 5: the right to parental direction and guidance and consistent with a child's evolving capacities’ in J Tobin (ed) The UN Convention on the Rights of the Child: A Commentary (Oxford: Oxford University Press, 2019) p 172.

84 See for example J Herring Relational Autonomy and Family Law (Cham: Springer, 2014) pp 48–49; J Nedelsky ‘Reconceiving autonomy: sources, thoughts and possibilities’ in A Hutchinson and L Green (eds) Law and the Community: The End of Individualism? (Toronto: Carswell, 1989) p 225; J Christman ‘Relational autonomy, liberal individualism, and the social constitution of selves’ (2004) 117 Philosophical Studies 143 at 156; C MacKenzie and N Stoljar (eds) Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self (New York: Oxford University Press, 2000); M Minow and M Lyndon Shanley ‘Relational rights and responsibilities: revisioning the family in liberal political theory and law’ (1996) 11 Hypatia 4.

85 See for example J van den Hoven ‘Privacy and the varieties of informational wrongdoing’ in R Spinello and H Tavani (eds) Readings in CyberEthics (Boston: Jones & Bartlett, 2001) p 488; Rossler, above n 24, pp 1, 9–10, 75 and 117; Inness, above n 14, p 92; Gavison, above n 15, at 450; DeCew, above n 11, pp 69–70.

86 Tobin, above n 50, at 423.

87 Rossler, above n 24, p 167. See also D Oswell The Agency of Children: From Family to Global Human Rights (New York: Cambridge University Press, 2013) pp 91–98; Fortin, above n 5, pp 89–90.

88 Mitnick, above n 41, p 80; Hearst, above n 4, p 19; J Todres ‘Children's rights and women's rights: interrelated and interdependent’ in Ruck et al, above n 78, p 32.

89 Nedelsky, above n 84, p 235.

90 Rossler, above n 24, p 192 (emphasis in original).

91 A Dailey ‘Constitutional privacy and the just family’ (1993) 67 Tulane Law Review 955 at 985.

92 Olsen, above n 30, at 1511 and 1566; see also MA Fineman The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies (London: Routledge, 1995) p 187; Kim, above n 31, at 571; Dailey, above n 91, at 985.

93 JL Cohen ‘Redescribing privacy: identity, difference, and the abortion controversy’ (1992) 3 Columbia Journal of Gender and Law 43 at 60 (fn 52).

94 Olsen, above n 30, at 1511 and 1566. See also BB Woodhouse ‘The dark side of family privacy’ (1999) 67 George Washington Law Review 1247 at 1257; Dailey, above n 91, at 985; V Coppock ‘“Families” in “crisis”?’ in P Scraton (ed) ‘Childhood’ in ‘Crisis’? (London: UCL Press, 1997) pp 59–64; Mitnick, above n 41, pp 195–196 (fn 60); Allen, above n 25, pp 115–116.

95 H Stalford and K Hollingsworth ‘Judging children's rights: tendencies, tensions, constraints and opportunities’ in H Stalford et al (eds) Rewriting Children's Rights Judgments: From Academic Vision to New Practice (Oxford: Hart Publishing, 2017) p 17.

96 L Ferguson ‘Not merely rights for children but children's rights: the theory gap and the assumption of the importance of children's rights’ (2013) 21 International Journal of Children's Rights 177 at 189–190; C Wellman The Proliferation of Rights: Moral Progress or Empty Rhetoric? (New York: Westview Press, 1999) pp 176–181.

97 See for example EKM Tisdall ‘Children's wellbeing and children's rights in tension?’ (2015) International Journal of Children's Rights 769; J Eekelaar ‘Beyond the welfare principle’ (2002) 14 Child and Family Law Quarterly 237 at 243–244.

98 See for example F Kelly ‘Conceptualising the child through an “ethic of care”: lessons for family law’ (2005) 1 International Journal of Law in Context 375; T Cockburn ‘Children and the feminist ethic of care’ (2003) 10 Childhood 71.

99 See for example M Nussbaum Creating Capabilities: The Human Development Approach (Cambridge, MA: Belknap Harvard, 2011); M Biggeri et al (eds) Children and the Capability Approach (Basingstoke: Palgrave Macmillan, 2011).

100 Stalford and Hollingsworth, above n 95, p 19.

101 See Tobin, above n 67.

102 See Stalford et al, above n 95.

103 J Eekelaar ‘The interests of the child and the child's wishes: the role of dynamic self-determinism’ (1994) 8 International Journal of Law, Policy and the Family 42.

104 Daly, above n 66, pp 129–130.

105 Ibid, ch 3.

Ibid

106 Ibid, p 4.

Ibid

107 I acknowledge that the vision of children's rights promoted by the UNCRC remains subject to criticism: see, in particular, M Guggenheim What's Wrong with Children's Rights (Cambridge, MA: Harvard University Press, 2005). For a sound discussion of such criticism, see M Freeman ‘Why it remains important to take children's rights seriously’ (2007) 15 International Journal of Children's Rights 5; P Alderson ‘Common criticisms of children's rights and 25 years of the IJCR’ in M Freeman (ed) Children's Rights: New Issues, New Themes, New Perspectives (Leiden: Brill Nijhoff, 2018) p 39; D Reynaert et al ‘Between “believers” and “opponents”: critical discussions on children's rights’ (2012) 20 International Journal of Children's Rights 155.

108 See J Tobin ‘Seeking to persuade: a constructive approach to human rights treaty interpretation’ (2010) 23 Harvard Human Rights Journal 1 at 37–39. See also Todres, above n 88, p 21; Freeman, above n 47, at 16.

109 See Tobin, above n 67, at 603.

110 See Stalford et al, above n 95.

111 Parkinson and Cashmore, above n 82, p 10.

112 Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 at [57].

113 UN Committee on the Rights of the Child (CRC Committee) General Comment No 7: Implementing Child Rights in Early Childhood (UN Doc CRC/C/GC/7/Rev.1, 20 September 2006) at [5].

114 Parkinson and Cashmore, above n 82, p 7; C Smart et al ‘Objects of concern? Children and divorce’ (1999) 11 Child and Family Law Quarterly 365; Tobin, above n 47, at 171, 176; Stalford and Hollingsworth, above n 95, p 31; D Archard ‘Children, adults, best interests and rights’ (2013) 13 Medical Law International 55 at 59; Tobin and Varadan, above n 83, p 172.

115 Tobin, above n 67, at 591.

116 CRC Committee, above n 113, at [17].

117 Tobin and Varadan, above n 83, p 178.

118 G Lansdown The Evolving Capacities of the Child (Florence: UNICEF Innocenti Studies, 2005) p 4; Tobin and Varadan, above n 83, p 173.

119 Lansdown, above n 118, p 4; Tobin and Varadan, above n 83, p 173. See also L Lundy et al ‘Article 12: the right to respect for the views of the child’ in Tobin, above n 83, p 405; Parkinson and Cashmore, above n 82, pp 13–18 and 100–102.

120 See UNCRC, Art 18(1). Art 19(1) recognises that parents can exercise their rights in ways that are inconsistent with their parental responsibilities and with the objective of enabling children to realise their rights.

121 Tobin, above n 67 at 586, citing J Fortin ‘Accommodating children's rights in a post Human Rights Act era’ (2006) 69 Modern Law Review 199 at 317–318.

122 Tobin and Varadan, above n 83, p 160.

123 Ibid, p 161.

Ibid

124 Hearst, above n 4, p 19; MA Fineman The Autonomy Myth: A Theory of Dependency (New York: The New Press, 2004) p 35.

125 L Ferguson ‘An argument for treating children as a “special case”’ in Brake and Ferguson, above n 76, p 244; M Lotz ‘Parental values and children's vulnerability’ in C Mackenzie et al (eds) Vulnerability: New Essays in Ethics and Feminist Philosophy (New York: Oxford University Press, 2014) pp 260–263; J Eekelaar and J Tobin ‘Article 3: the best interests of the child’ in Tobin, above n 83, p 87; Parkinson and Cashmore, above n 82, pp 82–83, 89, 94–95 and 120–122.

126 See UNCRC, Art 3(1); Children Act 1989, s 1(1), (3).

127 J Tobin and SM Field ‘Article 16: the right to protection of privacy, family, home, correspondence, honour, and reputation’ in Tobin, above n 83, p 558. See also Daly, above n 66, p 82; H Brighouse and A Swift ‘Parents’ rights and the value of the family’ (2006) 117 Ethics 80 at 95–96.

128 Tobin and Varadan, above n 83, p 172; CRC Committee General Comment No 8 (2006): The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment (UN Doc CRC/C/GC/8, 2 March 2007) at [28].

129 CRC Committee, above n 113, at [17].

130 Tobin and Varadan, above n 83, pp 184–185.

131 L Alexander ‘Are procedural rights derivative substantive rights?’ (1998) 17 Law and Philosophy 19 at 42; Daly, above n 66, pp 53, 393–394; Freeman, above n 47, at 18.

132 I Young Inclusion and Democracy (Oxford: Oxford University Press, 2010) p 145.

133 Archard, above n 54, p 66.

134 B Milne ‘Is “participation” as it is described by the United Nations Convention on the Rights of the Child (UNCRC) the key to children's citizenship?’ (2005) 9 Journal of Social Sciences 31 at 41.

135 Lundy et al, above n 119, p 409. See also Tobin and Varadan, above n 83, p 174; L Krappmann ‘The weight of the child's view (Article 12 of the UN Convention on the Rights of the Child)’ (2010) 18 International Journal of Children's Rights 501 at 505.

136 Tobin, above n 50, at 418.

137 CRC Committee General Comment No 12 (2009): The Right of the Child to be Heard (UN Doc CRC/C/GC/12, 20 July 2009) at [29].

138 Ibid, at [30].

Ibid

139 Lundy et al, above n 119, p 410, citing Parkinson and Cashmore, above n 82, p 4.

140 Lundy et al, above n 119, p 410.

141 G Lansdown ‘The realisation of children's participation rights’ in B Percy-Smith and N Thomas (eds) A Handbook of Children and Young People's Participation: Perspectives from Theory and Practice (Oxford: Routledge, 2009) p 13.

142 Lundy et al, above n 119, pp 397, 399; Parkinson and Cashmore, above n 82, pp 193–194; L Mann et al ‘Adolescent decision-making: the development of competence’ (1986) 12 Journal of Adolescence 265.

143 Ministry of Justice Assessing Risk of Harm to Children and Parents in Private Law Children Cases: Final Report (June 2020) at [6.2]; Karamalis & Karamalis (2018) 57 Fam LR 588 at 591; Parkinson and Cashmore, above n 82, pp 191–192.

144 Lundy et al, above n 119, p 399. See also J Roche ‘Children: rights, participation and citizenship’ (1999) 6 Childhood 475; CRC Committee General Comment No 20 (2016) on the Implementation of the Rights of the Child During Adolescence (UN Doc CRC/C/GC/20, 6 December 2016) at [24].

145 CRC Committee, above n 113, at [14].

146 M Minow and ML Shanley ‘Revisioning the family: relational rights and responsibilities’ in ML Shanley and U Narayan (eds) Reconstructing Political Theory: Feminist Perspectives (Cambridge: Polity Press, 1997) p 85.

147 Macleod, above n 76, p 204.

148 BC Hafen and JO Hafen ‘Abandoning children to their autonomy: the United Nations Convention on the Rights of the Child’ (1996) 37 Harvard International Law Journal 449.

149 Woodhouse, above n 20, at 1839. See also M Freeman ‘Review essay: what's right with rights for children’ (2006) 2 International Journal of Law in Context 89 at 89–90; Tobin, above n 78, p 53; Freeman, above n 77, p 50; Fortin, above n 5, pp 5 and 8–9; D Reynaert et al ‘A review of children's rights literature since the adoption of the United Nations Convention on the Rights of the Child’ (2009) 16 Childhood 518 at 524–525; C Huntington ‘Rights myopia in child welfare’ (2005–06) 53 UCLA Law Review 637 at 639–640.

150 See Eekelaar, above n 47, pp 9–17 for an overview of the welfare model and its development.

151 Ibid, pp 13 and 56. See also J Eekelaar ‘Families and children: from welfarism to rights’ in C McCrudden and G Chambers Individual Rights and Law in Britain (Oxford: Clarendon Press, 1994) p 301.

Ibid

152 Tobin, above n 50, at 429.

153 Eekelaar, above n 103, at 53.

154 See Lundy et al, above n 119, pp 410–412 and references cited therein; Eekelaar and Tobin, above n 125, pp 85–87; Parkinson and Cashmore, above n 82, pp 116–117; Tobin, above n 50, at 428–429 and 431–432; H Brighouse ‘How should children be heard?’ (2003) Arizona Law Review 691; Tobin and Field, above n 127, p 567.

155 Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192 at 203.

156 Re M (Abduction: Child's Objections) [2007] 2 FLR 72 at [46]. See also AVH v SI & Another [2015] 2 FLR 269 at [28], [37]; Fortin, above n 5, p 236.

157 Eekelaar and Tobin, above n 125, p 86. See also Parkinson and Cashmore, above n 82, p 199.

158 Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 at [57].

159 Duffy & Gomes (No 2) [2015] FCCA 1757 at [71].

160 Tobin, above n 47, at 180; Tobin, above n 50, at 428 and 432.

161 Eekelaar, above n 103, at 55.

162 L Lundy ‘“Voice” is not enough: conceptualising article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33 British Educational Research Journal 927.

163 Daly, above n 66, ch 6.

164 J Seymour Children, Parents and the Courts: Legal Intervention in Family Life (Annandale: Federation Press, 2016) p 101.

165 Lansdown, above n 118, p 4.

166 See for example A Franklin and P Sloper ‘Listening and responding? Children's participation in health care within England’ (2005) 13(1–2) International Journal of Children's Rights 11.

167 See for example R Sanders and S Mace ‘Agency policy and the participation of children and young people in the child protection process’ (2006) 15 Child Abuse Review 89.

168 L Lundy ‘In defence of tokenism? Implementing children's right to participate in collective decision-making’ (2018) 25 Childhood 340; J Moran-Ellis and EKM Tisdall ‘The relevance of “competence” for enhancing or limiting children's participation: Unpicking conceptual confusion’ (2019) 9 Global Studies of Childhood 212.

169 Moran-Ellis and Tisdall, above n 168; K Toros ‘A systematic review of children's participation in child protection decision-making: tokenistic presence or not?’ (2020) Children & Society, DOI: 10.1111/chso.12418.

170 Toros, above n 169; M Duncan ‘Children's experiences of statutory child protection interventions’ in M Duncan (ed) Participation in Child Protection: Theorizing Children's Perspectives (Cham: Palgrave Macmillan, 2018) p 13; J Cossar et al ‘“You've got to trust her and she's got to trust you”: children's views on participation in the child protection system’ (2016) 21 Child & Family Social Work 103.

171 I Coyne and M Harder ‘Children's participation in decision-making: balancing protection with shared decision-making using a situational perspective’ (2011) 15(4) Journal of Child Health Care 312 at 313.

172 Ibid, at 316.

Ibid

173 Tobin and Field, above n 127, p 567; Eekelaar and Tobin, above n 125, p 87; D Archard ‘Philosophical perspectives on childhood’ in J Fionda (ed) Legal Concepts of Childhood (Oxford: Hart Publishing, 2001) p 47.

174 Tobin, above n 47, at 165. See also Daly, above n 66, ch 6.

175 Lundy et al, above n 119, p 411; Tobin, above n 50, at 429.

176 Tobin, above n 78, p 64. See also Tobin and Varadan, above n 83, p 184.

177 J Feinberg ‘The child's right to an open future’ in W Aitken and H La Follette (eds) Whose Child? Children's Rights, Parental Authority, and State Power (Totowa, NJ: Rowman and Littlefield, 1980) p 124. See also Freeman, above n 58, pp 39 and 98; Freeman, above n 47, at 25; Ferguson, above n 125, p 240.

178 Fortin, above n 5, p 22.

179 Freeman, above n 47, at 13, 15 and 19–20; Tobin, above n 47, at 160.

180 Lundy et al, above n 119, p 411.

181 Ibid.

Ibid

182 J Herring ‘The welfare principle and the rights of parents’ in A Bainham et al (eds) What is a Parent: A Socio-Legal Analysis (Oxford: Hart Publishing, 1999) p 89; cf M Eichner ‘Principles of the law of relationships among adults’ (2007) 41 Family Law Quarterly 433.

183 J Herring ‘Forging a relational approach: best interests or human rights?’ (2013) 13 Medical Law International 32 at 35.

184 Herring, above n 84, p 20.

185 Parkinson and Cashmore, above n 82, p 8.

186 Tobin, above n 50, at 424.

187 Tobin and Varadan, above n 83, pp 175 and 183. See also N Thomas ‘Towards a theory of children's participation’ (2007) 15 International Journal of Children's Rights 199 at 206–207.

188 J Nedelsky ‘Reconceiving rights and constitutionalism’ (2008) 7 Journal of Human Rights 139 at 145 (emphasis in original). See also MA Glendon The Transformation of Family Law (Chicago: Chicago University Press, 1989) p 308; Minow and Shanley, above n 84, at 6.

189 Lundy et al, above n 119, pp 431–432. See also Parkinson and Cashmore, above n 82, pp 19–20; H Shier ‘Pathways to participation: opening, opportunities and obligations’ (2001) 15 Children & Society 107.

190 J Eekelaar ‘Self-Restraint: social norms, individualism and the family’ (2012) 13 Theoretical Inquiries in Law 75 at 94.

191 Tobin, above n 108, at 1, 3–4.

192 Ibid, at 8–10.

Ibid

193 B Rudd et al ‘Associations between parent and child reports of interparental conflict/violence and child difficulties in a family mediation setting’ (2015) 53 Family Court Review 602 at 602; Daly, above n 66, p 18.

194 Fortin, above n 5, pp 239–240.

195 Children Act 1989, s 3(1).

196 See Children (Scotland) Act 1995, s 6.

197 Daly, above n 66, p 408; J Cashmore and P Parkinson ‘Children's participation in family law disputes: the views of children, parents, lawyers, counsellors’ (2009) 82 Family Matters 15 at 16.

198 S Cobb ‘Seen but not heard?’ (2015) Family Law 144 at 152.

199 Parkinson and Cashmore, above n 82, p 19.

200 B Percy-Smith and N Thomas ‘Conclusion: emerging themes and new directions’ in Percy-Smith and Thomas, above n 141, p 365.

201 J Pryor and B Rodgers Children in Changing Families: Life after Parental Separation (Malden, MA: Blackwell, 2001) p 135.

202 Defined in s 8 as an order regulating arrangements relating to with whom a child is to live, spend time or otherwise have contact, and when a child is to live, spend time or otherwise have contact with any person.

203 Children Act 1989, s 1(3)(a).

204 Ibid, s 7.

Ibid

205 For concerns about the s 7 welfare report process, see Fortin, above n 6, pp 254–256; G MacDonald ‘Hearing children's voices? Including children's perspectives on their experiences of domestic violence in welfare reports prepared for the English courts in private family law proceedings’ (2017) Child Abuse & Neglect 1.

206 Family Procedure Rules 2010, r 16.2.

207 Practice Direction 16A, at [7.1].

208 Family Procedure Rules 2010, r 16.4. See also Ministry of Justice, above n 143, pp 69–70.

209 Vulnerable Witnesses and Children Working Group Report of the Vulnerable Witnesses and Children Working Group (February 2015) at [5]. See also Family Justice Council Guidelines in relation to Children Giving Evidence in Family Proceedings (December 2011).

210 Re E (A Child) [2016] EWCA Civ 473 at [47], [56].

211 See B Hale ‘Children's participation in family law decision making: lessons from abroad’ (2006) 20 Australian Journal of Family Law 119; Family Justice Council Guidelines for judges meeting children who are subject to family proceedings (April 2010) at [5]; Daly, above n 66, pp 252–261.

212 See for example EKM Tisdall ‘Challenging competency and capacity? Due weight to children's views in family law proceedings’ (2018) 26 International Journal of Children's Rights 159; EKM Tisdall ‘Subjects with agency? Children's participation in family law proceedings’ (2016) 38(4) Journal of Social Welfare and Family Law 362; B Neale ‘Dialogues with children: children, divorce and citizenship’ (2002) 9 Childhood 455; R Carson et al Children and Young People in Separated Families: Family Law System Experiences and Needs (Melbourne: Australian Institute of Family Studies, 2018); Parkinson and Cashmore, above n 82, pp 4–13; AB Smith et al ‘Rethinking children's involvement in decision-making after parental separation’ (2003) 10 Childhood 203.

213 See for example S Holt ‘A voice or a choice? Children's views on participating in decisions about post-separation contact with domestically abusive fathers’ (2018) 40(4) Journal of Social Welfare and Family Law 459; A Barnett Domestic Abuse and Private Law Children Cases: A Literature Review (Ministry of Justice Analytical Series, 2020) [7.3], [7.5]; Carson et al, above n 212, pp 3–4, 47, 51–52, 68; Parkinson and Cashmore, above n 82, pp 73–74, 149–154; F Bell ‘Barriers to empowering children in private family law proceedings’ (2016) 30 International Journal of Law, Policy and Family 225.

214 Ministry of Justice, above n 143, p 67.

215 For an application of these features in the context of Australian family law proceedings for the authorisation of medical treatment for children diagnosed with gender dysphoria, see G Dimopoulos ‘Rethinking Re Kelvin: a children's rights perspective on the “greatest advancement in transgender rights” for Australian children’ (2021) 44(2) University of New South Wales Law Journal (forthcoming).

216 E v Chief Constable of the Royal Ulster Constabulary [2009] 1 AC 536 at 543.

217 Re E (A Child) [2008] UKHL 66 at [6].

218 E v Chief Constable of the Royal Ulster Constabulary [2009] 1 AC 536 at 543.

219 R (on the Application of Williamson) v Secretary of State for Education and Employment [2005] 2 FLR 374 at 395 [71]. See also Re E (A Child) [2008] UKHL 66 at [6]; R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48 at [49].

220 See Children Act 1989, s 1(3)(a).

221 Eekelaar and Tobin, above n 125, p 106. See also Tobin, above n 67, at 605; R George Ideas and Debates in Family Law (Oxford: Hart Publishing, 2012) p 127.

222 Woodhouse, above n 20, at 1820.

223 The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was passed unanimously by the Scottish Parliament on 16 March 2021. The Bill will commence six months from Royal Assent.

224 R (Howard League for Penal Reform) v Secretary of State for the Home Department [2003] 1 FLR 484 at [51].

225 R (SG & Others) v Secretary of State for Work and Pensions [2015] UKSC 16 at [137].

226 S Gilmore ‘Use of the UNCRC in family law cases in England and Wales’ (2017) 25 International Journal of Children's Rights 500 at 505–509.

227 H Stalford et al ‘Introducing Children's Rights Judgments’ in Stalford et al, above n 95, p 6.

228 Dworkin, R Law's Empire (Cambridge, MA: Belknap Press, 1986) p 88Google Scholar.

229 J Anderson and A Honneth ‘Autonomy, vulnerability, recognition, and justice’ in Christman and Anderson, above n 34, p 129.

230 See V v United Kingdom (2000) 30 EHRR 121 at [87] (‘the procedures adopted must be conducive to active participation as opposed to passive presence’).

231 Hunter, RMore than just a different face? Judicial diversity and decision-making’ (2015) 68 Current Legal Problems 119CrossRefGoogle Scholar at 131.

232 Daly, above n 66, p 31; Mabon v Mabon [2005] EWCA Civ 634 at [26] (referring to ‘a keener appreciation of the autonomy of the child and the child's consequential right to participate in decision making processes that fundamentally affect his family life’).

233 CRC Committee, above n 137, at [34].

234 See Sinclair, RParticipation in practice: making it meaningful, effective and sustainable’ (2004) 18 Children & Society 106CrossRefGoogle Scholar at 116; Daly, above n 66, pp 229–234 and ch 7.

235 Hale, above n 211, at 119.

236 K Hollingsworth and H Stalford ‘Towards children's rights judgments’ in Stalford et al, above n 95, pp 76–77. See also Stalford, H et al. ‘Achieving child friendly justice through child friendly methods: let's start with the right to information’ (2017) 5 Social Inclusion 207CrossRefGoogle Scholar.

237 Eekelaar and Tobin, above n 125, p 97.

238 See Hollingsworth and Stalford, above n 236, pp 82–84; Hale, above n 211, at 119 (remarking that ‘we judges could make a start by producing a version of our decision which makes sense to the person most closely affected by it’).

239 Hollingsworth and Stalford, above n 236, p 54.

240 [2017] EWFC 48. See also Lancashire County Council v Mr A, Mr B, The Children [2016] EWFC 9.

241 A (Letter to a Young Person) [2017] EWFC 48.

242 Hollingsworth and Stalford, above n 236, p 83.

243 See Children (Scotland) Act 1995, s 11F(2).

244 See K Hunt Federle ‘Do rights still flow downhill?’ in Freeman, above n 107, p 13.

245 CRC Committee, above n 137, at [135].

246 CRC Committee General Comment No 5: General Measures of Implementation for the Convention on the Rights of the Child (UN Doc CRC/GC/2003/5, 27 November 2003) at [1].

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