Rewriting Children’s Rights Judgments: From Academic Vision to New Practice PDF
Preview Rewriting Children’s Rights Judgments: From Academic Vision to New Practice
REWRITING CHILDREN’S RIGHTS JUDGMENTS This important edited collection is the culmination of research undertaken by the Children’s Rights Judgments Project. This initiative involved academic experts revisiting existing case law, drawn from a range of legal sub-disciplines and jurisdictions, and redraft- ing the judgment from a children’s rights perspective. The rewritten judgments shed light on the conceptual and practical c hallenges of securing children’s rights within judicial decision-making and explore how d evelopments in theory and practice can inform and (re-)invigorate the legal protection of children’s rights. Collectively, the judgments point to five key factors that support a children’s rights-based approach to judgment writing. These include: using children’s rights law and principles; drawing on academic insights and evidence; endorsing child friendly procedures; adopting a children’s rights focused narra- tive; and using child-friendly language. Each judgment is accompanied by a commentary explaining the historical and legal con- text of the original case and the rationale underpinning the revised judgment including the particular children’s rights perspective adopted; the extent to which it addresses the children’s rights deficiencies evident in the original judgment; and the potential impact the alternative version might have had on law, policy or practice. Presented thematically, with contributions from l eading scholars in the field, this innovative collection offers a truly new and unique perspective on children’s rights. ii Rewriting Children’s Rights Judgments From Academic Vision to New Practice Edited by Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore OXFORD AND PORTLAND, OREGON 2017 Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Bloomsbury Publishing Plc Kemp House 50 Bedford Square Chawley Park London Cumnor Hill WC1B 3DP Oxford OX2 9PH UK UK www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © The editors and contributors severally 2017 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-78225-925-1 ePDF: 978-1-78225-927-5 ePub: 978-1-78225-926-8 Library of Congress Cataloging-in-Publication Data Names: Stalford, Helen, editor. | Hollingsworth, Kathryn, editor. | Gilmore, Stephen, editor. Title: Rewriting children’s rights judgments : from academic vision to new practice / Edited by Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore. Description: Portland, Oregon : Hart Publishing, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2017025634 (print) | LCCN 2017027013 (ebook) | ISBN 9781782259268 (Epub) | ISBN 9781782259251 (hardback : alk. paper) Subjects: LCSH: Children—Legal status, laws, etc.—Great Britain. | Children’s rights—Great Britain—Cases. Classification: LCC KD735 (ebook) | LCC KD735 .R49 2017 (print) | DDC 342.4108/772—dc23 LC record available at https://lccn.loc.gov/2017025634 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters. This collection is dedicated to the children in our lives, especially Hannah, Emma and Idris (KH), Libby and Tom (SG) and Mairéad, Bethan, Siôn, Mair and Martha (HS). vi FOREWORD Are children human? Of course they are: long gone, one hopes, are the days when it was acceptable to dehumanise a child by referring to him or her in legislation or in court judg- ments as ‘it’. But in what ways are children human? Once infancy is ended, historically at the age of seven, are they just little adults, to be treated by the law in the same way as adults? That seems to have been the approach of the criminal law, as the trial of John Hudson, aged going on nine, at the Old Bailey on 10 December 17831 demonstrates. He was subject to the same criminal law, the same trial process and the same penalties as an adult would have been. The only concessions to youth were the conclusive presumption that children under seven were doli incapax—incapable of knowing right from wrong—and a rebuttable presumption that children under 14 were similarly incapable. A children’s rights analysis would have made greater allowances for the developmental status of the individual child and for his vulnerability to exploitation by others. But are children quite different human beings from adults? They clearly have develop- mental needs which someone must meet if they are to grow up into healthy functioning adults, fit to play a proper part in civil society. So it has long been recognised that they have a right to have those needs met, at least at a basic level, either by their parents, their families, their communities or the state. The Constitution of the Republic of South Africa so pro- vides, but in the famous case of Government of the Republic of South Africa v Grootboom,2 the Constitutional Court held that their right to shelter was a right to be provided with shelter by whomever was looking after them, in that case their parents. A children’s rights analysis might have held that if their parents could not provide them with shelter, the state should provide it, not only for them, but also for their parents. Or are children something else, sui generis human beings, having some of the rights peculiar to childhood and some of the rights which all human beings have? Peculiar to childhood is the right to have their best interests regarded as a primary consideration in all actions concerning them.3 In our law, this is translated into a duty placed on some, but by no means all, public authorities to have regard to the need to safeguard and promote the welfare of children when exercising their functions.4 It also means that their best interests must be a factor in deciding whether an interference with the fundamental human rights which they enjoy as ordinary human beings can be justified.5 The scope of this is much wider than might be thought. In Collins v Secretary of State for Communities and Local 1 Proceedings of the Old Bailey, 1674-1913, accessible at www.oldbaileyonline.org. See ch 26. 2 [2000] ZACC 19, 2001 (1) SA 46 (CC). See ch 17. 3 United Nations Convention on the Rights of the Child, 1989, Article 3(1). 4 Children Act 2005, s 11; Borders, Citizenship and Immigration Act 2009, s 55. 5 ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166. viii Foreword Government,6 for example, it was held to apply to the decision of a local planning authority to enforce the refusal of planning permission to a community of Travellers, including 39 children, encamped on land which they owned. A children’s rights analysis would, unlike the actual decisions in the case, properly explore and assess the best interests of the children involved and then ask whether there were countervailing interests of sufficient strength to outweigh them. In AAA v Associated Newspapers,7 a much-read daily newspaper published a salacious story about an allegation that a high-profile politician had fathered a child as a result of a brief extra-marital liaison. The child was named and a picture of her and her mother was published. This was an invasion of the child’s right to privacy and she was awarded damages in respect of the publication of the photograph. But she was not awarded damages in respect of the publication of her name or an injunction to prevent repetition. A children’s rights analysis would not have held that the child’s right to privacy was reduced because of her mother’s indiscretion in talking about it; the child was a separate person from her mother; nor was the public interest in knowing about the alleged philandering of the politician a good reason to publish the child’s name, which was not in her best interests. These cases illustrate that children do indeed have the same fundamental rights as other human beings and that interfering with them may be more difficult to justify. Perhaps the most striking illustration of this is the ‘largely overlooked’ case of R (on the application of Castle) v Commissioner of Police for the Metropolis.8 Three teenagers took part peacefully in a large demonstration in London against the rise in university tuition fees. When it appeared that matters were getting out of hand, the police decided to ‘kettle’ several thousand of the demonstrators, including these three, in Whitehall. It was near freezing, there were no or totally inadequate toilet facilities and no food or water. They were not allowed to leave, in one case for six and a half hours and in the other two for seven and a half to eight hours. They felt that they would be unable to go on demonstrations in future, for fear of being ‘kettled’ again. This was, of course, an interference in their right to freedom of expression and freedom of association and peaceful assembly. The court held that the police were under a duty to have regard to the need to safeguard and promote the welfare of children when policing the protest but that it had not been breached. A children’s rights analysis would have taken the best interests of these three children more seriously. It would have included their need to develop their personalities and experiences through safely engaging in community activities, including political activities. Children should not be deterred from engaging in political demonstrations, thus aiding their development as active participants in democracy, particularly as they do not have the right to vote. The police should have foreseen that there would be large numbers of children at this particular demonstration and made specific plans to safeguard their welfare. I have picked out only a few examples from this rich and varied collection to show how valuable it is to re-think and to re-write decided cases to reflect a children’s rights analy- sis far more effectively than the original judgments did. As with its predecessor, the femi- nist judgments project,9 this project aims to write plausible judgments, adopting the usual 6 [2013] EWCA Civ 1193, [2013] PTSR 1594. See ch 16. 7 [2013] EWCA Civ 554. See ch 10. 8 [2011] EWHC 2317 (Admin), [2012] 1 All ER 953. See ch 15. 9 R Hunter, C McGlynn and E Rackley (eds), Feminist Judgments: From Theory to Practice, (Oxford, Hart Pub- lishing, 2010). Foreword ix conventions of judgment-writing in the common law world, and using the legal and factual materials available at the time. The aim is to show that it is possible to write judgments which properly respect the rights of children, even within those conventional constraints. The moral for any court is to think of the child as a real human being, with his or her own distinctive personality and rights, and not as an extension of the adults involved. Brenda Hale 31 May 2017
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