There has been a tendency to neglect the moral and consequently the legal status of children in policy, law and civil society. There was no real discussion of children’s rights until John Locke and Rousseau, and no substantial advocacy of them until well into the nineteenth century. This saw the end of the chimney-sweep and the beginnings of compulsory education. Courts and penal institutions designed for the needs of the young were created. The ostensible rationale was protection. Children’s rights were welfare-oriented until well into the twentieth century, and there was little space for notions of children as autonomous beings. There was negligible attention to the fact that they might have views, wishes and ideas about what was best for themselves.

It was thinkers like Kate Douglas Wiggin, Ellen Key and, most significantly, Janusz Korczak who concluded that we needed to take children’s rights seriously. In 1983 I proposed ‘liberal paternalism’ for children which sought to confine paternalism “without totally eliminating it”. In England, the watershed decision was the Gillick case, a House of Lords ruling in 1985. In global terms the most significant event was the un endorsement of children’s rights in the form of the Convention on the Rights of the Child in 1989. This was a real achievement: no longer was it respectable to parrot the sentiment that, as Onora O’Neill put it, a child’s main remedy was to grow up. It was no longer very strange to think of children as rights-holders; to assume that they were deserving of a say, or of ‘participation’ in matters affecting them.

The crc is often broken-down into three constituent parts, the so-called ‘3 Ps’. Protection is still there, as is the provision for welfare. But it is the third P to which greatest significance attaches. Participation rights, via the Article 12 right to be heard, are the linchpin of the Convention, recognising that it is children’s agency as individuals which is often so key to the enjoyment of their rights. Yet children’s rights remain aspiration rather than reality, and much work needs to be done. As ground-breaking as Article 12 has been, serious questions arise as to its efficacy as a framework for children’s rights in many arenas. One such arena is where court decisions are made about children. Article 12(2) states that children should be heard (and their views given due weight) in proceedings. This is the area which Aoife Daly has set-out to examine in this monograph.

One of the remaining crucial tasks in children’s rights is to come to terms with the full meaning of each article of the crc and how it is playing out in practice. In Aoife Daly’s book it is argued with theoretical and empirical rigour that Article 12 is not facilitating children to influence proceedings in which their best interests are being determined. It is proposed that the notion of autonomy – that we should all have the freedom to make our own decisions to the extent possible – should instead be fundamental to the status of children in such proceedings. The book suggests that, if adults deserve to have choices to the extent possible in their private lives, why not children? If children have wishes, should overriding those wishes not be treated with the utmost seriousness by the courts? Should they not be assisted in making decisions themselves? This proposal to shift the focus from simply hearing children to actually seeking to uphold their autonomy is one which would serve to better acknowledge children as rights-holders in proceedings affecting them. It is one which should be considered by policy-makers, judges and other practitioners. It raises questions as to whether Article 12(2) should be interpreted in a way which better emphasises autonomy, or whether instead it should be replaced with text which explicitly prioritises autonomy.

This monograph is the fullest account of Article 12 in the context of legal proceedings, highlighting moral and legal questions and proposing some radical solutions. It is thorough, perceptive and novel and will set a benchmark for future analyses of children’s rights in the context of the courts and beyond.

Professor Emeritus Michael Freeman fba ucl

Editor of The International Journal of Children’s Rights

June 2017