This article explores contract theory and suggests that a focus on contracts provides an understanding of what it is to be human and the concomitant rights that spring from this. Thus despite children being a ‘special case’ and requiring higher levels of protection and intervention than adults, this always remains a gift that does not have the clarity or effectiveness that contracts provide. While retaining a constant critical distance attention to children’s ‘ability’ to write contracts illustrates in a clear way the evolving capacities of the child and the graduated way in which children are expected to gain responsibilities. This more complex and contested formulation of rights tends to be embedded in specific case laws at a local level, in direct contrast to the more abstract forms of rights that may present all children as vulnerable and lacking. Though the prism of contracts, a perspective to wider economic inequalities is enabled in a manner that may give us a different approach to issues such as consumerism.
We consider the problem of reconciling the two commitments to hear a child and to promote a child's best interests by identifying the principal issues at stake and illustrating them by reference to legal decision-making in the domains of health in the United Kingdom and custody and child protection in Norway. We agree that a child's views are not authoritative but dispute Harry Brighouse's claim that they are only of consultative value, affirming the fundamental right of a child capable of expressing a view of doing so and of thereby participating in the procedures where decisions affecting his or her interests are made. In conclusion we offer a checklist of questions that need to be asked about the way in which jurisdictions combine their explicit commitments to the two principles of best interests and hearing the child's views.