## 1. Children and Rights



In the background of any consideration of children and rights are two
matters: what counts as a child, and what is to be understood as
capacity. The latter arises inasmuch as the question of whether
children have rights and, if so, which ones normally turns on whether
they have the relevant capacity.



What counts as a child and how we should understand
'childhood' are interesting philosophical questions. They
are considered at length in Part I of Archard (2015). (See also the
entry on
 childhood.)
 We may usefully distinguish a concept from a conception of the child
as follows: 'to have a concept of "childhood" is to
recognise that children differ interestingly from adults; to have a
conception of childhood is to have a view of what those interesting
differences are' (Archard 2015, 32). Having made this distinction we should recognise that conceptions of childhood vary across time and
cultures. Moreover, conceptions of childhood may beg normative
questions of why children have a different moral status to adults. In
what follows a child is understood simply as a human being at a
certain chronological stage of development. For instance, Article 1 of
the United Nations Convention defines a child as any human being below
the age of eighteen years 'unless,' it adds, 'under
the law applicable to the child, majority is attained earlier'
(United Nations 1989; Archard and Tobin 2019).



The concept of capacity is relevant to questions both of which theory
of rights is correct as well as to which rights children might have.
Other terms such as 'competence' and 'ability'
are often used as if they were equivalent to 'capacity'.
However, it is important to be clear how 'capacity' is
used (Cowden 2012). Here it is used as a dispositional concept.
Someone has the capacity to do X if they could do X given the
opportunity and in the appropriate circumstances. It is to be
distinguished from an occurrent ability or competence to do X. Thus, a
mature rational adult has the capacity to make autonomous choices, but
may be temporarily unable to choose autonomously because, for
instance, on this occasion their mind is disturbed, or their will is
overborne. The notion of a child's capacity should not be
understood as meaning that they have it inasmuch as they would be able
as an adult to do certain things. Nevertheless, the distinct claim -
that allowing a child at some age to exercise a given right would
encourage the acquisition of the qualifying capacity that is otherwise
lacked - should be acknowledged and given due weight.



On the question of whether children have rights and which ones, some
think it obvious that children do have rights and believe that the
only interesting question is whether children possess all and only
those rights which adults possess. Others are sceptical believing that
given the nature both of rights and of children it is wrong to think
of children as right-holders.



Fully and properly to address this issue it is necessary first to be
clearer about the language of rights and to distinguish several
different questions. First, we can inquire as to what it is for
someone to have a right, or, put another way, we can ask what being a
right-holder consists in.We
can ask a second question, namely what must be true for there to be
rights. That is, we can try to specify what have been called the
'existence conditions for rights' (Sumner 1987,
10-11). Third, we can ask what the different kinds of rights
are. Finally, we can ask what the moral significance of having a right
is, or what weight rights have. With regard to any acknowledged right
we can identify it by means of its content (what is it a right to?)
and its scope (who has it and against whom do they have it?), as well
as its weight relative to other rights and to other moral
considerations. Not all of these questions are relevant when we want
to focus on the particular issue of whether or not children have
rights, and, if so, which ones. However, the first question raised
above is especially salient. In response, there are two competing
theories whose respective virtues and vices have been extensively
debated. In one camp is the will or choice theory (Hart 1973; Sumner
1987; Steiner 1994); in the opposing camp is the welfare or interest
theory (MacCormick 1982; Raz 1984; Kramer 1998). The first theory sees
a right as the protected exercise of choice. In particular to have a
right is to have the power to enforce or waive the duty of which the
right is the correlative. The second theory sees a right as the
protection of an interest of sufficient importance to impose on others
certain duties whose discharge allows the right-holder to enjoy the
interest in question. It is natural to think that each theory is more
appropriate for certain kinds of rights. The will theory fits rights
actively to do things (to speak, to associate with others) whereas the
interest theory fits rights passively to enjoy or not to suffer things
(to receive health care, not to be tortured). However, the distinction
between the theories of what it is to have a right is not, and does
not coincide with the distinction between different kinds of rights,
even if there are important relations between the two
distinctions.



In this present context one alleged defect of the will theory is its
exclusion of some humans from the category of right-holders. This is
because whilst all humans, and perhaps many classes of non-humans such
as animals, have interests that ought to be protected, not all humans
have the capacity to exercise choice. Children--along with the
severely mentally disabled and the comatose--cannot thus, on the
will theory, be the holders of rights. For at least one prominent
defender of the interest theory, the fact that children evidently do
have rights is sufficient to display the falsity of the will theory,
thus making children a 'test-case' for the latter
(MacCormick 1982). Of course, someone who is convinced of the
correctness of the will theory might readily concede that the theory
entails the denial of rights to children but see no reason to abandon
the theory. For her, the entailment is not, 'Children have
rights. Therefore, the will theory is false'. It is, 'The
will theory is true. Therefore, children cannot have
rights'.



The following seven
statements set out the arguments for the conclusions of the two
competing theories of rights. 1 - 4 sets out the argument for
the negative conclusion of the will theory, and 5 - 7 set out the
argument for the positive conclusion of the interest theory:


1. Rights are protected choices.
2. Only those capable of exercising choices
can be right-holders.
3. Children are incapable of exercising
choice.
4. Children are not right-holders.
5. Adults have duties to protect the
important interests of children.
6. Rights and duties are correlative.
7. Children are right-holders.



(6) states an important view held by many that for each and every
right there is a correlative duty. To say that I have a right to
something is to say that someone else has a duty to me in respect of
that thing. There may of course be some kinds of duties which do not
correlate with any rights. Indeed, some critics of children's
rights will concede that adults have duties to protect important
interests of children but deny that these interests correlate with
rights held by children. (7) is thus true only insofar as the duties
adults have in respect of children are such that they do correlate
with rights held by children.



(3) is obviously a contestable, and contested, claim. But insofar as
children cannot exercise choice and are required to do so on the will
theory if they are to have rights, then it follows that they cannot
have rights.



The upshot of setting the two theories out in this fashion is as
follows: either children have rights, in which case the will theory
cannot be true; or they do not, in which case that theory could be
true.



However, a will theorist who did not want to deny that children have
rights might resist affirming (2). This could be done by accepting
that children are themselves incapable of exercising choice but
allowing that children might have representatives or proxies, such as
most obviously their parents or guardians, who could exercise the
choices on behalf of the children. The representatives would choose
for the children as the children would choose if they were capable of
choosing for themselves. This proxy exercise of choice would take
place only during the period when the children were incapable of
exercising choice and in acknowledgment of the fact that the children
will eventually be capable of exercising their own choices. The will
theory's most prominent defender (Hart 1973, 184 n.86) makes
just such a modification of the will theory in respect of
children.



Now such a modification must meet a number of challenges. First, how
should the representatives be selected? Should those empowered to act
as representatives be those who are most likely to choose as the
children would choose if capable, or are there are other independent
grounds on which they are selected--such as, most obviously, that
they are the child's parents? Second, if we think of such
representation as a trust whose beneficiaries are children and whose
trustees are the adults choosing for children, are the terms of the
trust sufficiently clear and determinate? Is it, for instance,
perspicuous and evident what a child would choose if capable of
choosing? Note that the criterion is not what is in the best interests
of the child for, consistent with the will theory, we must appeal to
choices rather than interests. It is sometimes difficult to say what
some adult who cannot currently choose--because she is, for
instance, temporarily comatose--would choose if able. It is
impossibly hard in the case of someone, a child, who is for the period
of childhood simply incapable of making any choices. Third, how is the
trust to be enforced and by whom? The representative may be presumed
to have a duty to choose as the child would choose if able. If rights
are correlative with duties then someone other than the representative
and the child must be in a position to enforce or waive this duty.
Could this be the state or its representative?



If the will theory can meet these formidable challenges, it can accord
rights to children who are not then a straightforward
'test-case' for determining which theory of rights is
correct. Moreover, the will theorist can make two further points.
First, she might accept (6)--that rights and duties are
correlative--but deny or at least significantly modify
(5)--that adults have duties to protect the important interests
of children. She could say that the duties that are rightly specified
under (5) are not the duties that correlate with rights. This is just
to say, as all rights theorists will repeatedly say, that rights do
not exhaust the moral domain. What we are obligated to do because
others have rights against us is not everything we must morally do.
(6) asserts that for each and every right there is a correlate duty.
It is not the eminently disputable claim that for each and every duty
there is a correlate right. So, we should, as adults, ensure that the
interests of children are protected and promoted. It would not follow
that in consequence they have rights against us.



Second a will theorist might accept (5) and (6) as they stand but say
that the rights which correlate with these duties are possessed not by
the children but by adults who are in the best position to protect the
children. Thus, even if the duties adults have in respect of children
do correlate with rights it does not follow that the rights in
question are held by those whose interests they protect. Indeed, it
might be argued that it does not matter whether the rights are
possessed by those whose interests they protect. Hillel Steiner thus
asks rhetorically, Does it really matter whether the rights that
correlate with adult duties to children are held by the children or by
those who would act as best they could for the children? (Steiner
1998, 261).



This review of the will and interest theories has simply examined the
issue of whether the denial of children's rights can be thought
of as a test case for the probity of the will theory. There may of
course be other considerations that tell against the will theory and
in favour of the interest theory; or the converse.


## 2. Critics of Children's Rights



Grant that on either account of what it is to have a right children
could, in principle, be the holders of rights. Ought children to have
rights? And, if so, what rights should they have? Note that the rights
can be moral or legal. Children do have rights in law (under the UN
Convention most notably). These need not be accepted as moral rights.
However, someone could believe that the best way, on balance, to
protect the interests of children is by continuing to accord them the
legal rights they have under something like the Convention. Someone
might also believe that children should have legal rights but not
those they are currently accorded. Conversely, if children do have
moral rights, these need not be enshrined in law, although there would
evidently be a strong presumption that they should. In the first
instance, the question is whether children should have moral rights.
If they should, then there would be a good case for thinking that
these should be legally protected rights.



Those who claim that children should have all the rights that adults
presently have are called 'liberationists' (to be
discussed in the next section) and include Holt, Farson and Cohen
(Farson 1974; Holt 1975; Cohen 1980). We can distinguish real from
rhetorical liberationists. The latter are those who see the demand for
equal rights for children as a means both of drawing attention to the
discrimination that children suffer by comparison with adults in their
treatment and for improving their condition. A rhetorical
liberationist does not actually believe that children should be the
equals of adults. Rather, he thinks that claiming as much is the best
way of advancing their interests. A real liberationist does view
children as the equals of adults. Then there are those who think that
children should have some but not all of the rights which adults have.
Finally, there are those who think that children should not have any
rights. Or, put less brusquely, they are sceptical, for theoretical
and political reasons, about attributing rights to children. Their
case is made in three ways. The first is to assert what liberationists
deny, namely that children are not qualified, as adults are, to have
rights. The second is to argue that the ascription of rights to
children is inappropriate because it displays a misunderstanding of
what childhood is, what children are like, or what relationships
children stand in to adults. The third is to argue that,
notwithstanding their lack of rights, children can be assured of
adequate moral protection by other means.



With respect to the first claim, the question of qualification is the question of whether children have the requisite capacity for
rights. On the will theory of rights the relevant capacity qualifying
children for possession of rights is that of the ability to choose.
But there is a more general issue of capacity that is in dispute
whatever theory of rights is defended and that follows from attention
to the fact that rights have a content. Each right is a right to do,
to be, or to have something. Arguably, only those rights can be
possessed whose content can be appropriately attributed to their
owners. A right to free speech cannot properly be possessed by an
entity incapable of speech. One conventional way to think of rights in
terms of their content is to distinguish between freedom rights
(rights to choose, such as to vote, practise a religion, and to
associate) and welfare rights (rights that protect important interests
such as health).



Children in general lack certain cognitive abilities--to acquire
and to process information in an ordered fashion, to form consistent
and stable beliefs, to appreciate the significance of options and
their consequences. They also lack certain volitional
abilities--to form, retain and act in the light of consistent
desires, and to make independent choices. Children are not unique amongst
humans in this respect. Those adults who are seriously mentally
impaired are also disqualified in this sense, which is of course just
to say that these adults are childlike. Children are unique in the
following regard. Not all humans are seriously mentally impaired, but
all humans were once children. Thus every one of us was, during our
early years, not qualified to be a holder of rights even if now we are
so qualified.



It is worth distinguishing - as Schapiro (1999, 2003) does
- between two ways in which a child is, relative to an adult,
incapable. Schapiro argues that childhood is a 'normative
predicament' wherein the child is in a state of nature, lacking
any independent will whereby she might authoritatively and in her own
voice order her desires. She is an 'instinctual wanton'.
On her account, the capacities a child lacks are not those of making
good choices, but those of making any choices as such.



A child's incapacity, in the senses indicated above, would seem
to disqualify them from having liberty rights. Someone incapable of
choosing cannot have a right whose content is a fundamental choice.
If, as some maintain, all human rights are best interpreted as
protecting human agency and its preconditions, then it would follow
that those incapable of agency, such as young children, should not be
accorded human rights (Griffin 2002). On the other hand, it could be
maintained that, whilst children lack agency, they certainly have
fundamental interests meriting protection and thus at least have
welfare rights (Brighouse 2002). Moreover, it can be important to
recognise that children become beings capable of making choices and
that rights may be attributed in recognition of this gradual
development (Brennan 2002).



The second claim that may be made in denying rights to children is
that the ascription of rights to children is inappropriate because it
displays a misunderstanding of what childhood is, of what children are
like, or of what relationships children do or ought to stand in to
adults. This claim comes in various forms.



On one view we should start our thinking about what morally we owe
to children by specifying our obligations as adults to them
(O'Neill 1988). There certainly exist what are called perfect
obligations. These are obligations that are either owed to all
children or to some specified set of children. They are perfect in
that it is completely specified whom they are owed to and what is owed
to them. We all are obliged not to maltreat any child, and parents
have a particular duty to care for their children. But then there are
imperfect obligations which are those of caring for children to whom
we do not, as parents for instance, have specific obligations. All
adults owe these, but they are not owed to all children (how could
they possibly be?) nor is it specified what precisely is owed to
them. The obligations are imperfect because which children we should
care for is not specified nor is it specified precisely what is owed
to them. Both are left to individual discretion, depending in part on
circumstances. 



Perhaps then we can agree that we are all under a duty to prevent the
abuse of children. But clearly we cannot, as individuals, each act to
stop every child being abused. Moreover what we ought to do--for
instance, by reporting suspected cases of abuse--will depend on
the circumstances, and also on what is in place by way of particular
institutions and laws to deal with child abuse.



Crucially whilst perfect obligations correlate with rights, imperfect
obligations do not. This means that anyone who starts and finishes
thinking about what morally is owed to children in terms of their
rights is unable to capture what imperfect obligations express. Yet
this is to miss much of what is most important about the way in which,
morally, we should as adults stand in relation to children. For the
fulfilment of these imperfect duties of care and concern is what
centrally protects and promotes the lives of children as children.
Thinking ethically about children's lives in terms of their
putative rights is to misperceive what is of central importance and
value in these lives.



One possible response to O'Neill's argument is as follows
(Coady 1992). She does not deny that perfect obligations correlate
with rights. Thus, to the extent that we do have perfect obligations
to children, they do have corresponding rights. Yet O'Neill
denies that imperfect obligations correlate with rights. But why
should we think that? The imperfect obligations are fundamental ones.
They are not supererogatory, that is beyond duty. Adults must show
consideration and kindness to children in general. So why cannot
children claim such kindness and consideration from adults as their
right? O'Neill does say that when imperfect obligations are
institutionalised--when, for instance there are laws and
institutions specifying who should act and how to detect and prevent
child abuse--there are created positive special obligations to
which correspond positive rights. But she adds that the obligations
of, say, the social worker exceed the positive obligations associated
with her job. However this is true of all our obligations, whether
perfect or imperfect. A parent can have positive, that is legally
recognised and sanctioned, duties to her child. Yet her perfect
obligations to her children are not exhaustively specified by what the
law requires of her.



O'Neill's argument does not rely on any specification of
the content of the obligations that might be owed by adults to
children. Rather it is about the structure of our moral reasoning in
respect of children, and the priority--false in the
argument's view--that is given to rights. As an argument it
thus bears some comparison with a view that expresses general
scepticism about rights in the context of adult-child relations and
which emphasises the particular character of the family (Schrag 1980;
Schoeman 1980). This view draws attention to the quality and nature of
the relationships within a family. These are marked by an especial
intimacy and by deep, unconditional love between its members. One can
grant that many families do not conform to this ideal and yet
acknowledge that when the family does conform to the ideal it is a
distinctive, and distinctively valuable, form of human
association.



What arguably follows from this ideal of the family is the
inappropriateness of asserting or claiming rights. For to do so would
be to subvert and ultimately destroy what constitutes the family as
the distinctive form of human association it is. Appeal is being made
here to a familiar and oft-drawn distinction between two ways in which
individuals engaged in a common enterprise or bound together in some
enduring association can be assured of their beneficent, or at least
minimally good, treatment of one another. One way is by the
recognition--in law or custom or shared morality--of rights
that all individuals can claim, or by rules of justice--similarly
and generally recognised--which provide an assurance of fair
treatment. Another way is by reliance on the dispositions or attitudes
that the individuals bound together have--spontaneously and
naturally--towards one another. Thus, for instance, if each is
motivated by general benevolence in respect of all then no one has any
need to claim or assert what is due to him as of right or rule. In the
case of the family, it is argued, neither justice nor benevolence
suffices but love does. Of course children may have rights against
those who are not family members (a right, for instance, that their
school teachers provide them with information and skills). Some rights
are held against particular individuals. Others, including the most
important ones, are held against everyone, including parents and other
family members



A further and quite distinct allegation is that not only is there no
need for any such claims, but that allowing them to be made will
erode, and in due course destroy, the dispositions and attitudes that
rendered the need for rights and rules of justices unnecessary in the
first place. This further claim is an influential one in the general
critique communitarianism makes, within political philosophy, of what
is characterised as a rights-based and individualistic liberalism
(see, for instance, Sandel 1982, 32-5). In the context of the
family the claim is that granting its members rights will subvert and
bring about the end of the love between them that made rights
superfluous in the first place.



The arguments considered thus far have appealed to the role that
rights generally do and should play in our moral lives. A further
argument considers what would actually follow from granting rights to
children (Purdy 1992). The argument is that we need as adults to have
acquired certain traits of character if we are to be able to pursue
our goals and lead a valuable life. To acquire these traits it is
essential that we not be allowed as children to make our own choices.
Granting children the liberty to exercise rights is destructive of the
preconditions for the possibility of having fulfilling adult lives.
The central, and empirical, premise in this argument is that children
do not spontaneously and naturally grow into adults. They need to be
nurtured, supported, and, more particularly, subjected to control and
discipline. Without that context giving children the rights that
adults have is bad for the children. It is also bad for the adults
they will turn into and for the society we share as adults and
children.



The defence of the view that children should not, as the liberationist
asserts, have all the rights that adults have has rested on the claims
that, first, children lack the capacities that qualify adults for the
possession of rights, and, second, that talk of children's
rights does not capture the truth about their lives or about the
family or encourages a destructive permissiveness that has poor
consequences for adults and their society. The third step in defence
of the denial of rights to children is to provide reassurance that
such a denial is not bad for children.



One can thus maintain that rights do not exhaust the moral domain.
There are things we ought to do which do not correspond to the
obligations we have as the correlates of rights. As adults we should
protect and promote the welfare of children. It need not follow that
they have rights against us.



To those who insist that children should, like other historically disadvantaged and discriminated groups, be emancipated by according them rights the reply
(O'Neill 1988, 459- 463) is that such talk about rights
talk misses what is distinctively different about children as a group.
This is that childhood is not a permanently maintained status
associated with oppression or discrimination. It is rather a stage of
human development which all go through. Moreover the adults who deny
that children do have rights may nevertheless also believe that it is
their duty to ensure that the children for whom they have care do pass
from childhood into adulthood.


## 3. Liberationism



The first claim in the defence of the denial of rights to children is
that children are disqualified by virtue of their incapacity to have
rights. Liberationists dispute this. Liberationists can allow that the
key to the appropriateness of giving or not giving rights to children
turns on capacity (Cohen 1980, ix). They will argue, however, that
children are not disqualified from having rights by virtue of their
lack of a capacity that adults do have. Note that on this view
children are entitled to both welfare and freedom rights whereas those
who concede that children lack the latter in virtue of a certain
incapacity can still insist that they ought to have welfare rights
where such an incapacity is not relevant. There are two respects in
which this liberationist case might be modified or qualified. The
first is in its scope. The liberationist might claim that all children
are qualified to have rights, or she might claim only that some
children are so qualified. The latter is the more plausible position
in view of the fact that the very young infant is evidently
incapacitated. Indeed some liberationists seem to recognise as much
even whilst they insist that every child should have rights (Farson
1974, 31, 172, and 185). If the scope of the liberationist claim is
thus limited it does not amount to the view that no line dividing
human rights holders from humans who lack rights should be drawn.
Rather it is the view that such a line has been drawn in the wrong
place.



A second possible qualification of the liberationist view is that
giving rights to children will play an important part in their
acquiring the qualifying capacity. It is not thus argued that children
are capable now and are illegitimately denied their rights. It is
rather that they will only--or at least will more readily or will
at an earlier stage--acquire that capacity if given their rights.
The denial of rights to children is, on this account, one significant
element in a culture that serves artificially to maintain children in
their childlike state of dependence, vulnerability, and immaturity.
Again the qualification can concede that children of a very young age
are not capable enough to have rights, and will not acquire that
capacity even if given rights. Yet it insists that the denial of
rights to children of a certain age on account of their alleged
incapacity is simply self-confirming. They cannot have rights because
they are incapable but they are incapable only because they do not
have these rights.



One plausible version of the claim refers to the facts of experience.
Children, or at least children of a certain age, may not differ
markedly from adults in respect of their cognitive and volitional
capacities. They may be as capable as older humans of making their own
minds up about what to do and be as independent in their resolution to
act on their choices. But they may simply not have had as much
experience of the world as their adult counterparts. Being thus
naive and inexperienced in the ways of the world they will not be
as able, that is as qualified, as older (and wiser) humans are to make
sensible choices. Grant that such a lack of experience can be
attributed to a lack of opportunities to exercise choice. If such a
lack of opportunity is in turn attributable not simply to not having
been around for as long but to a denial of the freedom to make their
own choices, then there is a powerful case for liberty rights being
extended, even if cautiously, to these young people.



There are different ways in which the liberationist claim about
capacity--whether qualified or not--can be made. One is by
defending a 'thin' definition of capacity. For example it
may be said that children can make choices if what this means is
expressing preferences. Of course the response is that the ability to
choose, thus minimally defined, is indeed possessed by children (even
fairly young children), but it is not a capacity sufficient to qualify
for rights ownership. What is needed for that is more than simply the
ability to express or communicate a desire; what is needed is an
ability to understand and appreciate the significance of the options
facing one together with independence of choice. After all, the animal
who moves from one feeding bowl to another may be said thereby to
'choose' the food in the latter bowl. But the animal does
not have a general capacity of choice sufficient to qualify it as a
holder of liberty rights.


## 4. Arbitrariness



Liberationists might move in the other direction and argue that the
capacity which purportedly qualifies adults to have rights is in fact
not a capacity that most, or perhaps any, adults possess. Thus, it
will be said that no adult fully understands the nature of the choices
she faces, nor is she consistent in her beliefs and desires, nor is
she really independent of the influences of her environment and peers.
Whether the liberationist urges a 'thin' definition of
capacity--which the child satisfies as much as the adult--or
argues that on a 'thick' definition of capacity neither
adult nor child qualifies as capable, the point is the same. This is
that the alleged differences between children and adults in respect of
a qualifying capacity are not sufficient to warrant the ascription of
rights to the latter and their denial to the former.



One way, then, to charge that age is an arbitrary means of
distinguishing those qualified and those not qualified to have rights
is that there is, in fact, no real division of capacities (Cohen 1980,
48). We should note that this claim can be supported by an
'argument from marginal cases', one that has been most
influentially used in the case of animal rights. The argument in that
context is that for whatever capacity is argued to distinguish the
moral status of humans from animals there will be marginal cases
- some humans will fail to possess it (Singer 1975, 265). In the
present context, the argument would be that some older children
display those abilities that supposedly distinguish children in
general from adults (and some adults do not display those abilities
that older children have). Whatever the merits of an argument from
marginal cases the importance of being able to show that some children
close to but below the age threshold (such as adolescents) do or do
not merit the same treatment as other children is clear.



Another way to make the charge of arbitrariness turns on the idea that
dividing lines as such--'any' lines--are
arbitrary. Thus, either it will be said that this age is the wrong
dividing point or that using any age is wrong. The first objection
- 'wrong age'- may concede that there is a better
age to be used, just as the second objection - 'age is
wrong' - may concede that there is a way, better than using age,
to mark the division. The initial and obvious reply to the second
objection is that age as such is not the issue but rather the reliable
correlation of age with the acquisition of those capacities that
qualify a person for the attribution of rights. Some liberationists
may thus not dispute that there should be a threshold age--one
beyond which adult rights are acquired--but think that the
conventional or orthodox threshold is fixed too late. Liberationists
may also simply deny that there should be any threshold on the grounds
that there just is no difference between children and adults in
respect of their respective capacities for any threshold age to mark.
This version of the arbitrariness claim concedes that if age functions
as a threshold it does so only inasmuch as it reliably correlates with
the acquisition of capacities which are necessary qualifications for
the possession of rights. In sum, the arbitrariness claim amounts
either to the denial that the acquisition of the specified capacities
does correlate with the threshold in question or to the denial that
there is any age at which the capacities are acquired.



Setting aside this version of the arbitrariness claim, what remains of
the charge that '[a]ny line which uses age to distinguish people
with rights from people without can be shown to be arbitrary'?
There are two ideas. The first is that although the threshold of age
does serve to mark a difference within the class of human beings it is
being human which is important. Or, relatedly, what is being
distributed, namely rights, is so important that all humans should
have them. It is being human which should make the difference not
being of a certain age. Rights are too important to be denied to some
humans on account of their (lesser) age and given to others on account
of their (greater) age.



The reply is simple. Being human does matter and it is precisely
because they are human beings, albeit young ones, that children are
entitled to be treated in ways that non-humans may not. However, it is
rights that are being distributed and to that end a threshold age does
mark a significant point. Although having rights is better than not
having them, those who lack rights do not lack any moral status
whatever. Children are acknowledged to be humans meriting moral regard
and yet to be young humans meriting a certain and age specific
regard.



Some will still insist that a threshold age does not mark a
significant enough difference. A 40-year-old differs greatly from a
4-year-old. Someone who is 18 years and 1 month does not differ
greatly from someone who is 17 years and 11 months. It is
understandable that the 40-year-old should have rights whereas the
4-year-old should not. But this is not the case for the latter
pairing. This is a version of the marginal cases argument about the
extent to which real differences between classes are displayed by the
members of each class at the edge of these classes. The reply will be
that the criticism concedes a difference between being too young to
have rights and being old enough to have them. These differences are
not arbitrary. Moreover, a threshold has to be fixed. The fact that
there may not be significant--or significant
enough--differences between the members of the two classes being
distinguished at the edges of each class is the price one pays for
having to operate with a threshold.



But is this price one that must be paid? The complaint is that age
does not always reliably correlate with competence. Thus, using age
may risk unfairly penalising some who are in fact competent just as it
may risk unfairly rewarding some who are in fact incompetent.
Moreover, the penalties and rewards in question--lacking or
possessing rights--are far too important to run such risks. Why
then should one not take each individual on her own and determine
whether or not she is qualified to have rights?



The problems with the suggested use of a test are various. First,
there is the sheer administrative scale of its employment in such a
case as human rights. Second, there is the problem of agreeing on a
determinate procedure for testing. How exactly are we to examine
someone in respect of their competence to possess rights? Third, there
is the problem of fairness. Any test must not unfairly disqualify some
group of putative rights-holders by, for instance, having a bias in
the testing procedure which, in effect, discriminates against that
group. Fourth, the administration of any official test--and
especially one whose passing yields such important goods--is
subject to the risks of corruption or of misuse for the
self-interested ends of those administering it. Again, this cannot be
true of the use of age as a threshold. To summarise, these problems
attaching to the use of a test are large and insuperable.



The counter-response to consider is that the burdens of any such test
should be borne by the state inasmuch as there is a considerable risk
of egregious wrong - the denial of rights - that is run by
continuing only to use an age-based proxy for the existence of the
relevant capacity (Godwin 2011, 286).



The charges of arbitrariness can be argued to be false or overstated.
Children do differ from adults in respect of their competence to
possess rights. A threshold of age may be the appropriate way to
register that difference. One should, thus, acquire rights only on
reaching a certain age. However, two riders to this summary are
appropriate.



First, different rights may be acquired at different ages. After all,
it is plausible to think that the capacities needed for, and
qualifying a person to possess, different rights are themselves
different. More particularly, different rights would seem to require
different degrees of competence. Liberty rights entitle their
possessors to make choices, and the matters in respect of which
choices are made differ in their complexity, importance, and
consequential impact. Those who are allowed to choose require greater
or lesser amounts of maturity, independence, and deliberative
proficiency in order to be able to make these different kinds of
choice. The decisions to marry, consume alcohol, serve in the armed
forces, undertake paid labour, vote, buy goods in a shop, travel
unaccompanied, and open a bank account seem to presuppose different
levels of understanding and autonomy. Assuming that these levels are
progressively acquired at different ages, it makes sense to accord the
corresponding rights not all at once but in stages.



Second, there should be an ordered but consistent acquisition of
rights. If children are assumed to display the competence required for
one kind of right, they should not be refused another kind of right
which presupposes the same or even a lesser degree of ability. It
would not make sense, for instance, to deny a young person the right
to refuse medical treatment but allow them to choose to die in the
armed services of their state.



The liberationist may make one last move. They may concede that
children do lack the capacities that are a prerequisite for the
possession of rights. However, they can suggest that children should
be permitted 'to borrow the capacities of others to secure
whatever it is we are entitled to' (Cohen 1980, 56). Child
agents would advise their clients with a view to ensuring that the
child's right is properly exercised. However, to the various
problems with the use of proxies or representatives, which have
already been rehearsed in Section 1, we may add this question, Is the
child still free to act or not on the advice given? If the child is
not so free, then the role of the adviser is a strictly paternalist
one, supplanting the child's choice as to what is best for
herself with her own choice. If on the other hand the child is free to
reject the adviser's advice, then the child is free to do what
she wants anyway and the role of adviser is otiose and beside the
point. One only needs to 'borrow' what one does not have.
Not using what could be borrowed leaves one with the lack--and
its consequences--that made the borrowing necessary. On the other
hand, if a child can distinguish good from bad advice, then the
borrowing is unnecessary. The child can give as good advice to herself
as would be given to her by an adviser. But then no adviser is needed
and this is precisely what Cohen denies.


## 5. Children's Rights and Adult Rights



Those who deny that children do have rights can, as O'Neill
argues, believe that the interests of children are nevertheless
adequately protected through adults' discharging relevant
obligations. Yet, for some, the value of rights is not adequately
captured in this manner. Joel Feinberg, for instance, believes that
the value of a right lies in those who possess it being able to claim
from others what is specified as its content (Feinberg 1970).



If having rights does have a distinctive and special value in this
kind of way, then it matters greatly that children can have at least
some rights. What might these be? As indicated at the outset, children
are humans. They have at least the right to life that all humans have.
Nevertheless, children are not thought to have all the rights that
adult humans do. Central amongst these rights is that of
self-determination, that is, the right to make choices in respect of
one's own life. This right is the basis of derivative rights to
marry, have sex, choose one's work, purse a course of education,
and so on.



Most who believe that adults have rights which children do not have
make the cut between liberty and welfare rights. Feinberg
distinguishes between rights that belong only to adults (A-rights),
rights that are common to both adults and children (A-C-rights), and
rights that children alone possess (C-rights) (Feinberg 1980). Thus, a
common position is that the A-rights include, centrally, the liberty
rights, and that the A-C-rights include, centrally, the welfare
rights. To repeat, liberty rights are rights of choice (how and
whether to vote, what to say publicly, whether to practise a religion
and which one, which if any association to join, and so on), whereas
welfare rights protect important interests (such as health, bodily
integrity, and privacy).



What might be included in the C-rights? Feinberg distinguishes between
two sub-classes of C-rights. There are, first, those rights which
children possess in virtue of their condition of childishness.
Although Feinberg does not further divide this first sub-class of
C-rights, this can be done. There are the rights children have to
receive those goods they are incapable of securing for themselves and
are incapable of so doing because of their dependence upon adults.
These goods might include food and shelter. There are, second, the
rights to be protected against harms which befall children because of
their childlike vulnerability and whose harmfulness is a function of a
fact that they befall children. These harms might include abuse and
neglect. Note that some adults might be argued to merit the same
degree of rights-based protection on account of their childlike
vulnerability and dependence.



Finally, there are goods that children should arguably receive just
because they are children. Those who have written on children's
goods do so for two reasons: first, to answer the question of what, as
a matter of justice, is owed to children; and, second, to answer the
question of whether, and why if so, childhood is itself intrinsically
valuable (Gheaus 2015; Macleod 2010). Note that goods may be valuable
to both children and adults, but of especial value to the former; or
only of value to children. Candidate goods include play and
innocence.



However, the most central, and contentious, example is a child's
right to be loved. This is not an A-C-right but it is arguably a
C-right, and indeed is cited by many as a C-right (MacCormick 1976,
305). Various declarations of children's rights include such a
right and a respectable case can be made to meet the various
objections normally raised against its attribution (Liao 2015).



It is standard to classify the rights listed in the UNCRC under the
three P's: those of protection (for example, against abuse), of
provision (for example, of education), and of participation (for
example, to speak and to associate freely). Protection rights will be
accorded to children but not to adults inasmuch the condition or state
of childhood calls forth and requires this protection. Children, along
with adults, have provision rights but the content of these will
differ between them because of the form that children's needs
and circumstances take. Thus, grant that both children and adults have
a welfare right to health care. In the case of children, but not that
of adults', paediatric care and treatment is appropriate. But
that fact is no different in its significance from the fact that
amongst different adults the proper form of health care should vary in
line with their various disabilities, diseases, and circumstances.


## 6. The Child's Right to Grow Up



The second sub-class of C-rights are those which Feinberg
characterises as 'rights-in-trust' and which he thinks can
be subsumed under the single title of a 'right to an open
future'. These are the rights given to the child in the person
of the adult she will become. They are the rights whose protection
ensures that, as an adult, she will be in a position to exercise her
A- and A-C-rights to the maximal or at least to a very significant
degree. They keep her future open. Such rights impose limits on the
rights of parents and also impose duties on the part of the state to
protect these rights.



A couple of things are worth noting about these rights-in-trust.
First, Feinberg refers to these C-rights as 'anticipatory
autonomy rights', which might suggest that they are only
A-rights-in-trust. But he also speaks of rights-in-trust of class C as
protecting those future interests a child will have as an adult. This
implies that they are also anticipatory welfare rights (Feinberg 1980,
126-7). Hence this sub-class of C-rights ensures that the adult
can later exercise both her A-rights (liberty) and her A-C-rights
(welfare).



Second, there is the question of how open a child's future
should be. Some interpret the demand for an education for an
'open future' as requiring individuals to acquire
'to the greatest possible extent' the capacity to choose
between 'the widest possible variety of ways of life'
(Arneson and Shapiro 1996, 388). Arneson and Shapiro have pointed out several
objections to such a 'maximising' interpretation. It may
not be possible to quantify in a determinate fashion the number of
options open to a future adult. Furthermore, some fulfilling life
choices are only available at the expense of denying the child a
number of otherwise possible choices. For instance, a child
intensively trained to realise his considerable innate musical
abilities may be unable to pursue careers that would have been open to
him in the absence of such a dedicated education. The following
further criticisms can be added. Requiring that a child be brought up
to be able eventually to choose between as many options as possible
may impose unreasonable burdens on parents. It also seems implausible
to think that a child suffers if she is denied one or even several
possible insignificant further options beyond some threshold number of
choices. Is it really harmful to a child that she does not learn to
play all of the orchestral instruments and is thereby denied the
opportunity to pursue a solo career in those she does not? Finally,
some future options are surely morally base or in some other respect
without value (Mills 2003).



Feinberg does sometimes talk only of the harms of closing off
significant life choices. Yet he does also on occasion employ the
language of maximisation. '[Education] should send [the child]
out into the adult world with as many open opportunities as possible,
thus maximising his chances for self-fulfilment'. (1980, 135;
see also 151). However, it seems much more plausible to suggest that a
child should have enough autonomy to be able to make reasonable life
choices. The preconditions of autonomy are both internal (a capacity
to think for oneself, to acquire and appreciate relevant information,
and a volitional ability to act independently) and external (the
provision of a range of feasible and valuable options). In respect of
both conditions, it is perfectly possible to have a good sense of what
counts as adequate autonomy, even if there is no clear bright line
marking the point of sufficiency.



Closely related to Feinberg's idea of
'rights-in-trust' is Eekelaar's idea of a
child's 'developmental' rights (Eekelaar 1986).
These are the rights of a child to develop her potential so that she
enters adulthood without disadvantage. Whereas Feinberg attributes the
rights to the child's adult-self, the child holding them only in
'anticipatory' form, Eekelaar attributes the rights to the
adult's child-self. Arguably, this makes no difference, since
the child and the adult are one and the same person. Although this is
a metaphysically contentious claim (Parfit 1984), grant that child and
adult are merely distinct temporal stages of a single individual.
Whether each temporal stage of the person has the same interest in the
child developing into an adult is a further issue which will be
considered shortly.



However, child and adult do stand in an asymmetrical relationship to
one another in a way that does not seem to be true of the different
temporal stages of the same adult. After all, adult Smith can now
exercise her liberty rights in such a fashion that at a later time she
is not able to exercise them and her welfare rights to the same degree
as she can now. Smith can, for instance, choose now to enter into a
slavery contract or to engage in a dangerous sport that risks death or
serious disability. A child, on the other hand, is denied the right to
make choices that will fetter the adult exercise of her rights.



This can be justified by distinct thoughts. First, a child, unlike an
adult, simply lacks the ability to make considered choices and should
not have liberty rights. An adult can make unwise choices but is
presumed to possess a general minimal capacity to make choices, which
the child lacks. Second, what is done or not done in childhood can
affect or shape the whole of one's later life and in a way that
is largely irreversible. By contrast, an adult is in a better position
to change the course of her life. Third, a child may be thought to
have the formal deliberative abilities to make choices (knowing what is
to be decided) but simply lack the life experiences to appreciate and
properly understand those choices.



Fourth, in the specific case of an adolescent - who is legally a
child but on the edge of and at the beginning of adulthood -
they may be judged as autonomous but nevertheless at a 'life
stage' which merits paternalistic denial of choices
(Franklin-Hall 2013).



Now consider the case of a child who will not develop into an adult,
say someone who is suffering from a terminal disease that will prevent
her living beyond the age of majority. Such a child lacks
developmental rights. Or rather, she has them, but her circumstances
do not allow for their protection. However, she does still have
welfare and protection rights whose correlate duties can be
discharged. The child has an interest in not suffering harm and in
enjoying a certain standard of life even if she never lives beyond her
childhood.



When, for instance, we provide a child with health care or protect her
from abuse we not only thereby serve her immediate interests as a
child, but we also ensure that she will grow into a mentally and
physically healthy adult. At its simplest, a child's welfare
right not to be killed is a precondition of the very possibility of
there being a future adult with any rights at all. Even the education
of a child can be represented as not merely of instrumental worth to
the future adult but of value to the child here and now. A child has
an interest now in learning things and does so independently of what
this might later mean for her future adult self. (Coady 1992, 51).



The child with the terminal illness will not develop into an adult.
Can we say of anybody that she has an interest, as a child, in
developing into an adult, an interest that is frustrated by her
terminal condition? Or is there an interest in only being a child and
never becoming an adult? Grant that the child-Q and the adult-Q are
two stages of one and the same individual. Could we speak of a
conflict between the present interest of child-Q in staying a child
and the future interest of adult-Q in child-Q developing into her
later adult self? The latter interest seems perfectly straightforward.
However, it is at least controversial whether everybody does have an
interest in growing up. Earlier cited work on the putative goods of
childhood can be used to argue that childhood as such has a value that
adulthood does not, with the further questions arising of whether the
former value exceeds the latter and of whether they can be compared at
all (Gheaus 2015; Hannan 2018). It has also been argued that it would
be better for human beings never to have been born (Benatar 2008).
Even if this is not a general truth, it may be true of some humans
that not growing into adulthood and ceasing to exist is better than
becoming an adult. This might be true, for instance, of somebody
facing the prospect of a life of unrelieved, extreme pain and misery.
Could there be an interest--even without such a prospect--in
being forever a child?



Such an interest cannot be physically satisfied in this world. It
is satisfied in the fictional world of Peter Pan; but the author of
that fantasy, J.M. Barrie, clearly deprecates his eponymous
hero's infantile desire to escape the realities of the world
(Barrie 1995). If we only mean, by the imagined interest, remaining
childish it is hard to see how any individual in our world could, if
rational, have such an interest. It is one thing to be a child forever
in a child's world as Peter Pan is. It is quite another to
remain a child in our adult world. Childhood is something best
appreciated by the child. It is also something that needs to be left
behind. In the words of Paul, 'When I was a child, I spoke as a
child, I understood as a child, I thought as a child: but when I
became a man I put away these childish things' (I Corinthians
13:11).


## 7. Best Interests



If children are not thought to have the A-rights, and, chiefly, do not
have the liberty rights to choose for themselves how to conduct their
lives, nevertheless they are not morally abandoned to their own
devices. In the first place, it is a standard principle of child
welfare law and policy that the 'best interests' of a
child should be promoted. Article 3.1 of the United Nations Convention
on the Rights of the Child states that 'In all actions
concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary
consideration' (United Nations 1989).



Second, Article 12.1 of the Convention asserts that, 'States
Parties shall assure to the child who is capable of forming his or her
own views the right to express those views freely in all matters
affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child' (United
Nations 1989).



Section 9 discusses the right to be heard. This section discusses the
best interest principle, henceforward the BIP. The discussion is brief
for the following reason: Article 3 does not accord to children a
right to have their best interests protected and promoted. Indeed, it
does not use the word 'right'. The Article does impose on
States parties an obligation to ensure that all relevant organizations
and legislative bodies make the best interests of children a relevant
consideration. However, the BIP sits oddly besides the other
enumerated rights.



Moreover, the BIP has been subject to numerous criticisms (Kopelman
1997; Parker 1994) and claims of ambiguity, chief amongst which are
the following. First, the weight given to best interests can be
variously specified, a choice between 'primary' or
'paramount' being a significant one which preoccupied
those drafting the Convention. (Alston 1994 12). Second, there is an
important difference between its use in respect of 'a'
(that is some particular) child and of 'children' (as a
class of humans). Third, it is implausible to view the BIP as
requiring that one must act 'so as to promote maximally the
good' of the child (Buchanan and Brock 1989, 10). Construed in
literally maximising terms (rather than merely what is good enough),
the BIP is unfeasibly demanding of agencies charged with the care of
children. Fourth, the BIP does not, as it stands, take account of the
interests of others. We cannot be required to promote the best
interests of a child over and above, and without regard to, the
interests of any relevant adult.



Fifth, the interpretation of 'best interests' is unclear:
it could be specified as what a child would choose for herself under
specified hypothetical circumstances; or what is, as a matter of fact,
best for the child, an account which is distinct from and independent
of the child's desires, actual or hypothetical. If it is the
latter then, some argue, we cannot with certainty determine what is
best for a child. We cannot in practice make complete and accurate
assessments of what will be the outcome of each and every policy
option that we might adopt in respect of a child (Mnookin 1979). The
BIP is indeterminate even where there are only two possible decisions
to be made (Elster 1989, 134-139). Such indeterminacy is
compounded and complicated by the fact of moral pluralism (Rawls 1993,
xvi-xvii), whereby individuals subscribe to different conceptions of
what makes life valuable. If we cannot agree how to rank as better or
worse different kinds of life, we will not be able to agree what is
better or best for the growing child. The fact of extensive
disagreement about what is best for children, or for a child, is often
set in the context of broader cultural disagreements about morality in
general. It is said that the BIP is subverted, or at least rendered
deeply problematic, by the existence of these deep and pervasive
cultural disagreements (Alston (ed.) 1994).



If we understand the BIP in terms of a child's hypothetical
choices, the most striking and influential thought is that we should
choose what is best for the child as the child would choose for
herself if the child were adult. For instance, John Rawls thinks the
following formulation defines the acceptable paternalism of a
guardian's treatment of his child: 'We must choose for
others as we have reason to believe they would choose for themselves
if they were at the age of reason and deciding rationally'
(Rawls 1999, 183). This apparently simple formulation is in fact
susceptible of at least two quite different interpretations, each of
which brings with it its own problems. In each case, we are seeking to
specify the adult person who chooses for the child.



We might, first, mean that we should choose for this child as the
adult the child will become would choose. However, this does not
determine a unique choice for, crucially, the nature of the adult that
the child will become precisely depends on the choices that are made
for it whilst a child. We can conceive of each of the different adult
selves the child might develop into approving, respectively, of the
different choices made for its childhood self--choices which were
responsible for the development of these different selves. Or, second,
the adult person who chooses for the child is an adult analogue of the
child. This is not the child's future adult self, which as we
have seen is indeterminate, but this child made into an adult version
of itself. That is, we do not imagine this child developing in the
future into its adult self. Rather we imagine a mature or grown-up
version of this child now making choices. This interpretation however
will still not work. The adult version of the child is one with
childish beliefs and desires filtered out. But, in the first place, it
is not clear what remains of the child in any choice situation
rendered hypothetical in this fashion. For the child just is someone
who has these childish beliefs and desires. What is it to be a child
if not to think and want as a child does? Second, it is entirely
indeterminate what should replace these beliefs and desires.



However, in the case of children, by contrast with adults, we cannot
cash out the various hypothetical conditionals. We do not know what a
child would choose if possessed of adult rational powers of choice,
because what makes a child a child just is its lack of such powers
(its ignorance, inconstant wants, inconsistent beliefs, and limited
powers of ratiocination). At the same time, we cannot ask how an adult
would choose if in the child's situation just because an adult
would not be in that situation, or would not be in a child's
situation. We must, it seems, choose for a child because a child
cannot choose for itself, and we must choose what is best for a child
not what some imagined adult version of the child would choose for
itself.



To repeat, the BIP, despite its importance, is not a child's
right. Moreover, as well as being beset by these various problems, it
is also arguably in tension with some of the other rights a child has.
In particular, the obligation to do what is best for the child stands
against an obligation to give serious consideration to a child's
own view of what is in their interests. This requirement is discussed
in Section 9.


## 8. Children and the Reproduction of Values



The putative possession by a child of a right to an 'open
future' together with the imperative to promote any
child's best interests raises the question of what, if anything,
is wrong with the transmission to a child of values. These most
obviously may be those values by which the child's parent lives
and which may also help to define the identity of a community. Article
2 of the UNCRC accords the child a right to non-discrimination on
various grounds including 'national, ethnic or social
origin'; and Article 30 recognises that a child belonging to an
'ethnic, religious or linguistic' minority 'shall
not be denied the right, in community with other members of his or her
group, to enjoy his or her own culture, to profess and practise his or
her own religion, or to use his or her own language'.



Yet, for many liberals, there is a tension between the recognition of
such rights and the requirement that a child not be inducted into a
community in such a manner that his or her future adult choices are
constrained. The main way in which this is set out is by means of an
emphasis upon a liberal ideal of an autonomous life, one in which an
individual is able both to form his or her own conception of the good
life to lead and is not prevented - by external social
circumstances or the actions of others - from being able to lead
the preferred life. Often the target that is juxtaposed to such a
liberal ideal is the values of religious minorities. The Supreme Court
judgment that prompted Joel Feinberg's defence of a
child's right to an 'open future', and which has
been extensively discussed, is Wisconsin v. Yoder (1972). This
exempted the Amish community from the requirement to keep their
children in school to the age others are so required in the interests
of maintaining that community's identity. Arneson and Shapiro in
response contrast 'religious traditionalist' and
'secular worldly' ways of life, seeing an education for
the latter as the best preparation for an open future (Arneson and
Shapiro 1996).



The problem with this approach is that the preferential treatment
- in the way that children are schooled - is both
discriminatory and may violate the central precept of liberal
neutrality, the requirement that the state not, in its law and
policies, favour any conception of the good (see the entry on
Perfectionism in Moral and Political Philosophy). Moreover, some
liberals will argue that the character traits and dispositions of
autonomy, for instance steadfastness of character, are best taught by
being raised in adherence to a particular way of life, such as one of
religious faith (Callan, 2002; Burtt 1996).



Liberals may escape the charge of violating the principle of
neutrality by arguing that a liberal society requires that its
citizens be motivated by a sense of justice and an ability to
participate effectively within democratic institutions. This
requirement is satisfied only if children are brought up in certain
values and are able, when adults, to make maximally autonomous
choices. In this manner the promotion of autonomy and an open future
can be seen as an indirect consequence of a necessary education in
those civic capacities that are the necessary precondition of stable
and sustainable liberal institutions.



The tension that is broached by a child's right to an open
future is given a clear and provocative reading in Matthew
Clayton's book (Clayton 2006). He argues that parents may not
'enrol their children into comprehensive doctrines', in
other words, bring them up to believe in general truths about the best
way to lead a life, whatever the provenance of those truths. Thus, his
view is broader than a critique of a religious education. But at the
same time, it would indict the vast majority of conscientious parents
seeking to bring up their children as they see best.



His defence of this view relies on a claimed analogy between the
exercises of political and of parental power. The former is only
legitimate on liberal grounds in the absence of any appeal to the
correctness of some comprehensive doctrine. Clayton thinks that the
similarities between the two exercises of power are sufficiently
strong and robust for parental conduct to be constrained by the same
liberal principle of legitimacy.



In response it may be argued that the two domains of power are not
analogous. It may also be suggested that there is a morally relevant
difference between parents setting out to enrol their children in a
comprehensive doctrine and children coming to share such a doctrine
because of sharing their life with their parents (Archard 2002).
Indeed, if the institution of the family as an essentially intimate
and private community of adults and children can be defended and if,
further, adults have a protected right to lead their lives by the
light of their preferred conception of the good, then such unintended
enrolment is inevitable. Others will argue that it is not possible to
teach children that sense of justice which liberals see as critical to
the sustainability of a fair society without embedding it in a
comprehensive doctrine (Franklin-Hall 2019).



It is of course a further question of whether certain communal
values violate liberal values other than autonomy - such as
equality. For example, it would be wrong to rear boys and girls in
gendered stereotypes that perpetuate inequality and
discrimination.


## 9. The Right to be Heard



The right to be heard is a valuable right. What makes it valuable is
both that there is a point to making one's views known and,
further, that making one's views known makes a difference. It
matters to me that I can speak out on political questions. It matters
also, and probably more, if what I say leads to the changes I favour.
Correlatively, it is true both that I do not want to be silenced and
that I do not want the statement of my views to be ineffectual. As a
further general point there will always be some issues on which it is
more important that I be allowed to speak and that what I say about
these issues carries weight in determining outcomes. Those are the
issues that matter to me, and the more they matter the more important
it is that I have the freedom to speak about them and be heard. On one
account, since children's views should not be
'authoritative', that is, determinative of what is done,
they have only a 'consultative' role (Brighouse 2003).
They may influence an outcome by, most obviously, providing those who
do make the decisions affecting a child's interests with a
clearer picture of what in fact is in those interests. On another
account, encouraging and according a weight to the expression of
children's views--even where this is unlikely to affect
outcomes in line with the views' content--is valuable just
because the child is capable of expressing a view and deserves to be
listened to (Archard and Skivenes 2009).



How is it with the child's right to be heard? It will be
important for the child to be listened to. But it is also important
that the child is heard in the sense that her views are given due
consideration and may influence what is done. Note that the
child's right to be heard on matters affecting its own interests
is a substitute for the liberty right to make one's own choices.
The right to be heard is only a right to have the opportunity to
influence the person who will otherwise choose for the child. The
power to make those choices resides with the adult guardian or
representative of the child. All the child retains is the right to try
to motivate that adult to choose as the child herself would choose if
she was allowed to.



Article 12.1 of the United Nations Convention on the Rights of the
Child not only accords the child the right freely to express its views
on matters affecting the child. It also, and crucially, gives the
child an assurance that these views will be given 'due weight in
accordance with the age and maturity of the child'. Great
emphasis is now placed on what are termed a child's
'participation rights' as opposed to his or her
'protection rights'. The latter, as the name suggests,
protect the child from violent, abusive, cruel or exploitative
treatment. 'Participation rights by contrast, give children
some entitlement to be the agents of their own lives. Article 12.1
provides a crucial underpinning justification for such rights. There
are problems in understanding how practically to implement such rights
(Ang, et al. 2006). There are also theoretical issues in making precise
sense of what a right such as that enshrined in Article 12.1 might
mean. Its complexities lie in understanding the difference between an
adult's power of choice and a child's views on critical
personal matters, in the different ways we might consider a
child's views, in how to weight those views and how their
weighting makes a practical difference in coming to a decision
(Archard and Uniacke 2020).



The celebrated British legal judgement in the Gillick case (Gillick
[1986]) provides a useful contrast to Article 12. This judgement has
been extensively discussed, and it has also been highly influential in
matters relating to the consent of children to medical treatment.



The Gillick judgement arose from the dissatisfaction of a mother with
the failure of her local health authority to withdraw an advisory
circular to the area's doctors. This advised doctors that they
could counsel and inform young girls under the age of 16 about sexual
matters as well as provide them with contraception, and that they
could do this without the consent of the child's parents. The
mother, Victoria Gillick, went to court to have the circular declared
unlawful. The final judgement by the British House of Lords was that
the circular was not unlawful. A key issue, relevant to the present
discussion, concerned the proper relationship between the
child's right to decide for itself and the parent's right
to decide for the child.



In deciding in favour of the health authority one of the Law Lords,
Lord Scarman, made a statement crucial to his finding and one that has
subsequently been much cited. It is worth reproducing:



> 
> 
> The underlying principle of the law ... is that
> parental right yields to the child's right to make his own
> decisions when he reaches a sufficient understanding and intelligence
> to be capable of making up his own mind on the matter requiring
> decision. (Gilick [1986], 186)
> 
> 
> 
> I would hold that as a matter of law the parental right to determine
> whether or not their minor child below the age of 16 will have medical
> treatment terminates if and when the child achieves a sufficient
> understanding and intelligence to enable him to understand fully what
> is proposed. (Gillick [1986], 188-9)
> 
> 
> 



Various questions arise. First, what does it mean for a child to get
to a particular point in their development? On what could be called
the threshold interpretation, once a child has achieved a certain
level of competence, her views as to what shall happen to her have a
determinate weight, either amounting to a liberty right of choice (on
a strong version) or (on a weak version) being counted in the balance
against her parents' views and the state's judgement of
her best interests. On what could be called the proportionality
interpretation, the child's views progressively increase in
weight as she gains a greater competence to choose for herself. They
increase up to the acquisition of a full liberty right of choice.



Second, on either the threshold or the proportionality account we need
a measure of that ability that marks the threshold or is simply
progressively acquired. How much intelligence and understanding, for
instance, is sufficient? In the first place, this measure must be
taken independently of any judgement of what is in the child's
best interest. That a child would choose what is taken to be in her
best interests is at most evidence that she does have sufficient
intelligence and understanding of the relevant issue. Her making such
a choice is not a necessary condition of her having the requisite
ability. Similarly, the making by a child of a poor choice is not
conclusive evidence of her general incapacity to choose for herself.
Wise adults can occasionally make stupid decisions just as fools
sometimes get it right.



In the Gillick judgement, Scarman required of the child that she
manifest an understanding of the 'nature' of the
contraceptive advice offered and 'also have a sufficient
maturity to understand what is involved' (Gillick [1986], 189).
We can distinguish here a number of possible elements. There is,
first, knowledge of certain facts. One child, for instance, knows that
a contraceptive acts to prevent conception that might otherwise result
from sexual intercourse. Another child, by contrast, could simply be
ignorant of or unable to comprehend the facts of reproduction. There
is, second, an understanding of what follows for the child from an act
or its omission. Thus, failure to use a contraceptive could lead a
young person who had sexual intercourse to become pregnant. These two
understandings together constitute knowledge of the
'nature' of the act. Finally, there is what arguably comes
with 'maturity' which is the ability to appreciate the
significance both of an act or its omission and of the relevant
consequences. It is one thing to know what it is to become pregnant,
and another to understand what that means. This latter understanding
involves realising that pregnancy brings in its wake physical changes,
that any resultant birth leaves a young person with a child to care
for, and so on. Scarman even insisted that the child would need to
have an appreciation of the 'moral and family' questions
involved.



Third, it is important in measuring a child's competence against
that in respect of which he or she is expressing a view to distinguish
between the complexity and the seriousness of the matter. A simple
choice--for instance that between only two options such as
whether to have a life-saving operation--may nevertheless be
portentous, having enormous and far-reaching consequences. It may thus
require much greater appreciation of what is involved than a more
complex decision, one that ranges over many possibilities. Yet the
latter kind of choice--consider choosing a five-course meal from
a very large menu--is far less serious in its consequences. In
short, the difficulty or complexity of a choice should not be confused
with its importance or significance for the child.



Fourth, the English courts at least have detected a fundamental
asymmetry between refusing and choosing to have treatment. A competent
adult has a right both to choose to have treatment and to refuse it.
Should this not also be the case with a competent child? A 15-year-old
who wants to have a particular operation against her parents'
wishes and even contrary to the best judgement of her doctors may be
judged competent and thus have her wishes respected. However, the
English courts in a series of judgements after Gillick have argued
that matters are somehow different when it is a case of a child
refusing an operation.



Of course, there is no inconsistency if a refusal requires a greater
degree of understanding and appreciation of the issues than a positive
acceptance. But where the choice is a simple disjunction, it is hard
to see how this can be the case. Are not the issues at stake the same
for both disjuncts? If the courts believe that an obligation to act in
the best interests of the child trumps one to respect the wishes of a
competent child, it needs to be shown why this obligation does not
have force in all circumstances. Why would a court not deny treatment
to a child it does not believe in her best interests when it judges
her competent to choose? If a child is competent then she is in all
significant and relevant respects the equal of an adult and should be
able both to choose and to refuse treatment.



Three final comments on the child's right to choose are in
order. First, what is deemed to be in the child's best interests
is evidence for, but not finally determinative of, a judgement as to
the competence of the child. Nevertheless, balancing a child's
right to be heard against a child's right to have its best
interests promoted is difficult. Second, it is arguably enough to show
a child's competence that a child understands the nature of the
act. After all, no more is needed for an adult's consent to be
informed. In the law of contract adults need only to know what they
are signing up to. They do not need a full appreciation of the
contract's significance and of its import for their future
lives. Third, Gillick competence as specified is very demanding.
Indeed, there are many adults who, in making their choices, fail to
display the maturity and 'understanding of what is
involved' that is dictated as necessary for the child. Why then
should a child have to display a competence that many adults lack both
in general and in particular cases?


## 10. Summary



One important, indeed central, manner of understanding the moral
status of the child is by questioning whether or not children have
rights. It is normally thought that according to the
'will' theory of rights children cannot have rights,
whereas according to the 'interest' theory they can. It
is, however, at least possible on the 'will' theory that
children could have rights, albeit ones that are exercised by trustees
or representatives.



Child 'liberationists' claim that children have all the
rights that adults do. Others deny this, either believing that
children have no rights or believing that children have only some of
the rights which adults possess. Those who believe children have no
rights deny that children are qualified as adults are to have rights.
They further argue that the ascription of rights to children manifests
a misunderstanding of what children are like and of the nature of
family relationships. Those who deny children all or some of the
rights possessed by adults nevertheless believe that children, as
humans, have a certain moral status that ought to be protected.



Those who say that drawing a line between adults and children in
respect of their possession of rights is arbitrary may mean different
things. To deny that different capacities are progressively acquired
at different ages is implausible. To insist that drawing a line as
such is wrong ignores the point of doing so, and recourse to the
alternative of a competency test is not appropriate or practicable. On
the standard view, children have welfare but not liberty rights,
whereas adults have both. Adults also have the right that their
childhood selves shall grow up to be adults of a certain sort.
Children do not have an interest in remaining in childhood.



The best-interest principle with all its problems of interpretation
sits oddly alongside the rights that are accorded to the child,
especially that of a right to be heard in matters affecting its
interests. This right in turn is a substitute not a complement to the
right of choosing for oneself, and the Gillick competence which
qualifies a child to exercise its rights of decision-making is
arguably stringently defined.