A Case Law Study on Selected Rights
Comparative Legal and Social Developments towards Prohibition and Beyond
Edited by Pernilla Leviner, Bronwyn Naylor and Bernadette Saunders
Edited by Jozef H.H.M. Dorscheidt and Jaap E. Doek
Dr. Stephanie Rap
Sally Hester and Allison Moore
In spite of the rhetoric of children’s participation in the public sphere, in their everyday life interactions young children’s rights continue to be denied or given entitlement on the basis of assumptions about the social category to which they belong, and opportunities continue to be missed to make links between the everyday and the societal, political and legal contexts by those wishing to further children’s participation rights. Drawing on the sociology of Norbert Elias, particularly his concept of “habitus” and “drag effect” we will explore the dissonance between the public and private status of young children’s rights and suggest ways that this might be remedied. The paper will conclude by arguing that it is important to work towards young children’s increased participation rights in their everyday lives because adults must acknowledge young children’s moral competence to participate in decisions about their everyday lives in order to develop children’s agency to do so.
In a previous article (Stoecklin, 2017), I considered the example of the “paradox of institutionalisation” (Stammers, 2013) occurring in the drafting of the General Comment on Children in Street Situations (UNCRC, 2016). The vision of children’s “living rights” as the outcome of a structured process translating specific claims into an institutionalised set of norms (Hanson and Nieuwenhuys, 2013) has been identified. Analysis of the labels used for “street children” underlines the transformability of signification, domination and legitimation in the theory of structuration (Giddens, 1979, 1984). In this article, a theory of situated agency is outlined. It provides a new framework to understand the institutionalisation of children’s rights as the dual structuration of subjects (children) and objects (rights) occuring in given contexts. This makes “rights acting children” emerge as an interdisciplinary concept.
This comprehensive literature review provides a critical examination of the concepts inherent in Australia’s National Disability Insurance Scheme, participant choice and control. These concepts are explored in relation to enacting the child’s right to be heard, as outlined in the United Nations Convention on the Rights of the Child and the United Nations Convention on the Rights of Persons with Disabilities.
Enacting this right is found to be dependent on the image of young children with disability, acknowledging children’s citizenship rights and balancing these with perspectives regarding the need for protection and the child’s place in family and community. The social-relational model of disability is helpful in understanding how the enactment of the right to be heard may be supported. Parents and early childhood professionals who are sensitive to the child’s perspective may take the role as social mediators of child voice, choice and control, along with practices supporting children’s evolving capacities to enact their own rights and aspirations.
Madeline H. Engel, Norma Kolko Phillips and Frances A. Della Cava
As a result of industrialisation, urbanisation, and mass migrations, the problem of homeless and abandoned children emerged in urban centres. Identified by some as dangerous and threatening to the existing social order, solutions to rescue or control the children were sought, including placing-out through forced migration and immigration programs, with no plan or intention of family reunification. This article examines two experimental programs that took the form of forced migration/immigration between the mid-1800s and mid-1900s – the “Orphan Trains” in the United States and the British “Child Migrant Programme”. The dire consequences of these programs gained public attention and had a profound impact on the development of the global emerging child welfare movement and concerns for the rights of children.
Laura Lundy and Helen Stalford
International law provides rights, rules and principles that guide the manner in which children in conflict with the law should be treated. When children’s rights are violated, this international law framework can be used by lawyers and courts to identify the nature of the violation and determine the remedies that must be taken to redress the harm and alter law or practice to ensure such breaches are avoided in the future. This article describes the international framework and its effective application in the South African courts, through a discussion of four Constitutional Court cases dealing with children in conflict with the law. The article discusses the arguments that were advanced in the cases and illustrates the litigation strategies that were employed. The case discussions explore the extent to which the international law was applied, directly or indirectly, by the courts, and assess the jurisprudential and practical impact of the international instruments.