17 September 2014
Section 29A panels training – Youth crime subset
Pre-requisite reading package
Please printout each item (except the Children’s Court research materials) to bring to the workshop
as they may be referred to throughout the day. Copies will not be available at the workshop.
Children's Court Criminal Division – guide to assessing capacity and taking instructions from
children (doc, 312 KB)
Handy hints for assessing the capacity of accused children in the Criminal Division of the Children's
Court, particularly as to fitness to plead, doli incapax, and mental impairment.
Children's Court Criminal Division capacity checklist (doc, 208 KB)
Handy hints in checklist form for assessing the capacity of accused children in the Criminal Division
of the Children's Court, particularly as to fitness to plead, doli incapax, and mental impairment.
Guide to giving pre-interview advice to children in police custody (doc, 290.5 KB)
Detailed guide for preparing to advise and then actually advising accused children about to be
interviewed by police.
Giving pre-interview advice to children in police custody – checklist (doc, 221.5 KB)
Handy hints in checklist form for preparing to advise and then actually advising accused children
about to be interviewed by police.
A Toxic Legacy
The Age article from 3 July 2013 about the impact of trauma on young children and the
development of early intervention programs.
Children’s Court of Victoria Research Materials
Comprehensive legal information on the jurisdiction and operation of the Children’s Court of
Victoria, especially:

Court overview

Court operation

Criminal – General

Criminal – Investigation

Custody and Bail

Criminal – Procedure

Sentencing

Children’s Court Clinic.
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Excerpt from The boy who was raised as a dog: and other stories from a child psychiatrist’s
notebook – what traumatized children can teach us about loss, love and healing (Basic
Books, 2007)
Chapter Six
By Dr. Bruce D. Perry and Maia Szalavitz
Downloaded from http://www.oprah.com/oprahshow/Excerpt-from-The-Boy-Who-Was-Raised-as-aDog 24/1/2013
I met Justin when he was 6 years old, in 1995. He was in the Pediatric Intensive Care Unit (PICU). I
had been invited by the PICU staff to come and, using that-psychiatric voodoo-that-you-do-so-well,
try to stop him from throwing feces and food at the staff. The PICU was almost always full and was
typically busy 24/7. Nurses, physicians, aides and families crowded the unit. The noise from
medical machines, phones, and conversations kept the large room filled with a non-stop buzz.
There were always lights on, people were always moving around and, although each individual
moved with purpose and each conversation was focused, the overall effect was chaos.
I walked unnoticed through the din to the nurses' station and studied the board to find the boy I'd
been asked to see. Then, I heard him. A loud, odd shriek made me turn immediately to find a bony
little child in a loose diaper sitting in a cage. Justin's crib had iron bars and a plywood panel wired to
the top of it. It looked like a dog cage, which I was about to discover was terribly ironic. The little
boy rocked back and forth, whimpering a primitive self-soothing lullaby.
He was filthy with his own feces, there was food all over his face and his diaper was heavy, soaked
with urine. He was being treated for severe pneumonia, but he resisted all procedures and had to
be held down to draw blood. He tore out his IVs; he yelled and screamed at staff; he threw his food.
The closest this hospital had to a psychiatric unit was the PICU (where the ratio of staff to patients
was very high) so Justin had been transferred. There, they had jury-rigged his crib/cage
arrangement. And once placed in the cage, the boy began to throw feces and anything else he
could get his hands on. That's when they called psychiatry.
Over the years I had learned that it is not a good idea to take a child by surprise. Unpredictability
and the unknown make everyone feel anxious and, therefore, less able to process information
accurately. Also, and importantly for clinical evaluation, the more anxious someone is the harder it
is for them to accurately recall and describe their feelings, thoughts and history. But most critically,
when a child is anxious it is much more difficult to form a positive relationship, the true vehicle for all
therapeutic change.
I had learned the power of first impressions, as well. I could get a much better sense of a child's
prognosis if he had a favorable or at least a neutral first impression of me. So rather than just start
asking questions of an unsuspecting and usually frightened and disoriented child, I'd found it was
best to give him a chance to meet me first. We'd have a brief humorous or engaging conversation,
I'd let him size me up a little, provide a clear, simple explanation of what I wanted to learn from him,
and then leave him alone for a while to process that information. I'd assure him that he was in
control.
The child didn't have to say anything if he didn't want to; if any topic came up that he didn't wish to
share with me, I'd tell him to just let me know and I would change the subject. Any time he decided
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to stop, the conversation was over. Over the years, I've only had one adolescent girl say that she
did not want to talk. But later that week, she told the staff that the only person she would speak with
was the "psychiatry guy with the curly hair."
When I saw Justin, I knew this case was going to be different. I needed to know more about him
before I could approach him. I took his chart, went back to the nurses' station and read his old
records, occasionally glancing over to watch him rock with his knees up by his chin, his arms
around his legs. He was humming or moaning to himself, and every few minutes he would let out a
loud angry-sounding shriek. The PICU staff had become used to this; no one even glanced his way
anymore.
As I read through his records, it became clear that Justin's early life had not been normal. Justin's
mother was a 15-year-old girl who left him with her own mother permanently when he was two
months old. Justin's grandmother, by all accounts, was a kind-hearted, nurturing woman who
adored her grandchild. Unfortunately, she was also morbidly obese and had related health
problems that made her very ill. When Justin was about 11 months old, she was hospitalized and
died several weeks later.
During her illness, her live-in boyfriend, Arthur, babysat for Justin. Baby Justin's behavior became
difficult, surely a result of losing both his mother and his grandmother in such a short time. Arthur,
still grieving himself, didn't know what to do with a crying, tantruming young child—and in his late
60s, he wasn't physically or mentally prepared for such a challenge. He called child protective
services, seeking a permanent placement for the boy, who after all, was not even a relative. CPS
apparently felt the boy was safe and asked if Arthur would keep Justin while they found alternate
placement. He agreed. Arthur was a passive man, in general, and patient. He assumed that CPS
would get around to finding a new home for Justin. But CPS is a reactive, crisis-focused agency
and with no one putting pressure on it to do so, it didn't act.
Arthur was not malicious, but he was ignorant about the needs of children. He made a living as a
dog breeder, and sadly, applied that knowledge to the care of the baby. He began keeping Justin in
a dog cage. He made sure the baby was fed and changed—but he rarely spoke to him, played with
him or did any of the other normal things parents do to nurture their children. Justin lived in that
cage for five years, spending most of his days with only dogs as his companions.
If we could witness a child's moments of comfort, curiosity, exploration and reward—and his
moments of terror, humiliation, and deprivation—we would know so much more about him, who he
is and who he is likely to become. The brain is an historical organ, a reflection of our personal
histories. Our genetic gifts will only manifest themselves if we get the proper types of
developmental experience, appropriately timed. Early in life these experiences are controlled
primarily by the adults around us.
As I read through Justin's chart, I began to imagine his life as it unfolded. At age 2, Justin had been
given a diagnosis of "static encephalopathy," meaning that he had severe brain damage of
unknown origin that was unlikely to improve. He had been taken to the doctor because he was
severely developmentally delayed: unable to walk or say even a few words by the time most
children are actively exploring toddlers who have begun to speak in sentences. Tragically, when
Arthur had brought Justin in for medical check-ups, no one inquired about his living situation. And
no one took a good developmental history. The boy had been tested for various physical ailments,
and his brain had been scanned, revealing atrophy (shrinkage) of the cerebral cortex and
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enlargement of the fluid-filled ventricles in the center of the brain. In fact, his brain looked like that of
someone with advanced Alzheimer's disease; his head circumference was so small that it put him
below the second percentile for children his age.
Back then, many doctors were still unaware of the damage that neglect alone can do to the brain.
They assumed that something so clearly visible on scans had to be evidence of a genetic defect or
intrauterine insult; they couldn't imagine that early environment alone could have such profound
physical effects. But studies done by our group and others later found that orphans who were left to
languish in institutional settings without receiving enough affection and individual attention do
indeed have visibly smaller head sizes and tinier brains. The brains show obvious damage, virtually
identical to that seen in Justin.
Unfortunately, as in Laura's case, Justin's problems were exacerbated by a fragmented medical
system. Over the years, even though he'd been given tests as complicated as chromosomal
analysis to look for genetic problems, and high-tech brain scans, he rarely saw the same doctor
twice. No one followed his case over time or learned about his living situation. By age 5, a repeat
screening showed that he had made minimal progress in fine motor, large motor, behavioral,
cognitive or speech and language capabilities.
He still couldn't walk or talk. To the doctors, who didn't know about the deprivation the child was
experiencing, it appeared as if most of his brain-mediated capabilities just did not work properly.
They assumed that Justin's "static encephalopathy" was due to some, as of yet, unknown and
untreatable birth defect. The unspoken conclusion with children exhibiting this kind of severe brain
damage is that they do not respond to therapeutic interventions. In essence, the doctors had told
Arthur that the boy was permanently brain-damaged and might never be able to care for himself, so
he wasn't given any incentive to seek further help.
Whether because of this medical pessimism or because of his irregular care, Justin was never
provided any speech therapy, physical therapy, or occupational therapy-and no in-home social
services were offered to his elderly caregiver. Left to his own devices, Arthur made care-giving
decisions that fit his understanding of childrearing. He'd never had children of his own and had
been a loner for most of his life. He was very limited himself, probably with mild mental retardation.
He raised Justin as he raised his other animals—giving him food, shelter, discipline and episodic
direct compassion. Arthur wasn't intentionally cruel: he'd take both Justin and the dogs out of their
cages daily for regular play and affection. But he didn't understand that Justin “acted like an animal”
because he'd been treated as one—and so when the boy "didn't obey," back into the cage he went.
Most of the time, Justin was simply neglected.
I was the first medical professional Arthur had told about his child-rearing practices because,
unfortunately for Justin, I was the first to ask.
After interviewing Arthur, reading Justin's charts and observing his behavior, it became clear to me
that it was possible that some of the boy's problems were not due to a complete absence of
potential. Maybe he didn't speak because he had rarely been spoken to; maybe, unlike a normal
child who hears some 3 million words by age 3, he'd been exposed to far fewer. Maybe he didn't
stand and walk because no one had coaxed him with her hand out to steady and encourage him.
Maybe he didn't know how to eat with utensils because he had never held any in his hands. I
decided to approach Justin with the hope that his deficits were indeed due to lack of appropriate
stimulation, essentially a lack of opportunity and not lack of capacity.
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The nursing staff watched as I walked carefully toward his crib. "He's gonna start throwing," one of
them said cynically. I tried to move in slow motion. I wanted him to watch me. I figured that the
novelty of my measured pace in contrast to the typical hurried motion in the PICU would catch his
attention. I did not look at him. I knew eye contact might be threatening, just as it is for many
animals. I pulled the curtains surrounding his crib partially closed so that all he could see was me or
the nurses' station. That way, he would be less distracted by the children in the adjacent beds.
I tried to imagine the world from his perspective. He was still ill, his pneumonia only partially
resolved. He looked terrified and confused—he had no understanding of this new, chaotic realm in
which he'd been placed. At least his home in the dog kennel had been familiar; he'd known the
dogs around him and knew what to expect from them. Also, I was sure he was hungry, since he
had thrown away most of his food over the last three days. As I got close, he sneered, scrambled
around the small space of his crib and gave out one of his screeches.
I stood still. Then I slowly started to take off my white coat, letting it slip to the floor. He stared at
me. I slowly undid my tie and pulled it off. I rolled up the sleeves of my shirt. With each action, I took
one small step closer. I did not speak as I moved. I tried to be as non-threatening as possible-no
quick movements, no eye contact, trying to speak in a low, melodic, rhythmic tone, almost like a
lullaby. I approached him as one would a terrified baby or a frightened animal.
"My name is Dr. Perry, Justin. You don't know what is happening here, do you? I will try to help you,
Justin. See, I am just taking off my white coat. That's ok, right? Now let me come a bit closer. Far
enough? Ok. Let's see what might work here. Mmm. I will take off my tie. Ties are not familiar to
you, I'll bet. Let me do that."
He stopped moving around the crib. I could hear his breathing—a rapid wheezy grunt. He had to be
starving. I noticed a muffin on a lunch tray, far out of his reach but still within his view. I moved
toward it. He grunted louder and faster. I took the muffin broke a small piece off, and slowly put it in
my mouth and chewed deliberately, trying to indicate pleasure and satisfaction.
"Mmm, so good, Justin. Do you want some?" I kept talking and reached my arm out. I was getting
closer; in fact, I was close enough now for him to reach my outstretched hand and the food. I stood
still, keeping up my banter and holding the muffin out to him. It seemed like hours, but within 30
seconds he tentatively reached out of the crib. He stopped halfway to the muffin and pulled his arm
back in. He seemed to be holding his breath. And then, suddenly, he grabbed at the muffin and
pulled it into the crib. He scooted over to the furthest corner and watched me. I stood in the same
place, smiled, and tried to bring some light into my voice, "Good, Justin. That is your muffin. It's ok.
It's good."
He started to eat. I waved goodbye and walked slowly back to the nurses station.
"Well. Just wait a minute he'll be screaming and throwing things again," said one of the nurses, who
seemed almost disappointed that he hadn't displayed his "bad" behavior for me. "I expect so," I said
on my way out.
From what I'd learned so far about the effects of neglect on the brain, I knew that the only way to
find out whether Justin had unexpressed potential, or had no capacity for further development, was
to see if his neural systems could be shaped by patterned, repetitive experience in a safe and
predictable environment. But I hadn't yet learned the best way to structure this experience.
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I did know that the first thing I needed to do was decrease the chaos and sensory overload
surrounding Justin. We moved him to one of the PICU "private" rooms. Then we minimized the
number of staff interacting with him. We began physical, occupational and speech/language
therapy. We had one of our psychiatric staffers spend time with him every day. And I made daily
visits.
The improvement was remarkably rapid. Each succeeding day was better for Justin. Every day he
appeared to feel safer. He stopped throwing food and smearing feces. He started to smile. He
showed clear signs of recognition and comprehension of verbal commands. We realized he had
received some social stimulation and affection from the dogs he'd lived with-dogs are incredibly
social animals and have a sophisticated social hierarchy in their packs. At times, he responded to
unfamiliar people much like a scared dogs will-tentatively approaching, backing off and then moving
forward again.
And as the days went by, he began to be affectionate with me and several other staff members. He
even started to show signs of a sense of humor. For example, he knew that "throwing poop" made
the staff crazy. So once, when someone gave him a candy bar, he let the chocolate melt into his
hands and raised his arm as though he were about to throw it. The people around him moved back.
And then he broke into a big, hearty laugh. It was this primitive sense of humor—which
demonstrated that he understood the effects of his actions on others and connected with them—
that rapidly gave me hope about his capacity for change.
At first, however, my colleagues thought I was wasting hospital resources by asking that physical
therapists try to help him stand, to improve his large and fine motor strength and control. But within
a week Justin was sitting in a chair and standing with assistance. By three weeks, he had taken his
first steps. Then, an occupational therapist came to help him with fine motor control and
fundamentals of self care—dressing himself, using a spoon, brushing his teeth. Although many
children who suffer this kind of deprivation develop a highly tuned sense of smell and often try to
sniff and lick their food and people, Justin's sniffing was particularly pronounced and may have had
to do with his life among the dogs. He had to be taught that this isn't always appropriate.
During this time, speech and language therapists helped him begin to speak, providing the
exposure to words he'd missed in his childhood. His once dormant, undeveloped neural networks
began to respond to these new repetitive patterns of stimulation. His brain seemed to be like a
sponge, thirsty for the experiences it required, and eagerly soaking them up.
After two weeks, Justin was well enough to be discharged from the hospital and placed in a foster
family. For the next few months, he made remarkable progress. This was the most rapid recovery
from severe neglect that we had yet seen. It changed my perspective on the potential for change
following early neglect. I became much more hopeful about the prognosis for neglected children.
For more information about the work of Dr. Bruce Perry and The Child Trauma Academy, please
visit ChildTrauma.org
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Excerpt from Law and Childhood Studies edited by Michael Freeman (OUP, 2012)
Chapter Five – Courts and the Construction of Childhood: A New Way of Thinking
By Dr John Tobin
In an interview with The Guardian, Albie Sachs, the celebrated and now retired Justice of the South
African Constitutional Court, explained the history of a case in which he held that the imposition of a
custodial sentence on a mother was not justified because of the impact on her children. His initial
response to the application had been dismissive:
I said: ‘This doesn’t raise a constitutional question. She simply wants to avoid going to jail.
She doesn’t make out a case, and her prospects of success are zero.’
But a female colleague insisted that the case be heard. She said: ‘There is something you
are missing. What about the children?’ Sachs went on:
‘The minute my colleague spoke to me about the importance of the three teenage children
of Mrs M, I started to see them not as three small citizens who had the right to grow up into
big citizens but as three threatened, worrying, precarious, conflicted young boys who had a
claim on the court, a claim on our society as individuals, as children, and a claim not to be
treated solely as extensions of the rights of the mother, but in their own terms.’1A
As the interview continued, Sachs explained that he had learnt of a similar approach being
advocated in Scotland where two thirds of women in prison had children under 18 but there was no
provision to take the rights of the children into account during the sentencing of their mother:
‘This was astonishing,’ Sachs told the audience. ‘In a totally different legal system, in a
totally different society, a conclusion was being reached that is almost identical. It showed
that the time has come for new ways of thinking.’
This interview is at once both a cause for concern and hope. Concern because it demonstrates the
fragile way in which justice is conceived and delivered. But for the intervention of one judge, there is
the real prospect that the mother of three children may have been imprisoned irrespective of the
impact on her children. Hope because of the willingness of Sachs and the other members of the
South African Court to embrace a new way of thinking about children that sought to mitigate the
impact of their decision concerning an adult on the lives of children.
The aim of this chapter is to explore what is meant by this new way of judicial thinking in which
children are conceived of as independent subjects with rights and entitlements as opposed to mere
objects in need of protection and charity. It consists of four parts. Part 5.1 will provide an overview
of the ways in which courts have constructed childhood over time. It will be suggested that three
broad models have emerged—a proprietary approach, a welfare approach and more recently a
rights based approach. Part 5.2 will detail the features of this newest way of thinking about children
and part 5.3 will provide an overview of the ways in which courts engage with this model. It will be
argued that courts’ engagement with a rights based approach can be classified along a spectrum
that ranges from the non-existent (or invisible) to the substantive with a range of approaches
between these extremes. Finally part 5.4 will identify the legal, institutional and social factors that
1A Jackie Kemp, ‘Life Sentences’ The Guardian (London) 1 July 2009, 5.
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influence the extent to which courts engage with this new way of thinking whereby children are
conceived of as rights holders. It will be argued that we are on the verge of a new epoch in which
the construction of childhood by courts will increasingly be viewed through the prism of rights.
5.1 The ways in which courts construct childhood
5.1.1 The proprietary model
Historically judges had no reason to conceptualize disputes involving children in terms of their
rights. This was a legacy of the Roman doctrine of patria potestas—paternal power—which entitled
a father not only ‘to all the service and all the acquisitions of his child, as much as those of his
slave, but he had the same absolute control over his person.’1 Despite the emergence of rights
discourse in the mid 1800s within political and social commentary, children were still excluded from
this development.2 Not surprisingly judges adopted a position that was consistent with this position.
The archetypal case for the illustration of this approach is the English decision in the late nineteenth
century of In re Agar-Ellis3 in which Bowen LJ warned that any move by a court to override ‘the
natural jurisdiction’ of a father over his child ‘would be really to set aside the whole course and
order of nature, and it seems to me it would disturb the very foundation of family life.’4
There was a significant social, political and legal movement away from the notion of parental
possession over the course of the late nineteenth and early twentieth century, first with the adoption
of the welfare model and more lately with the emergence of children’s rights.5 This paradigm shift,
however, has not been universally embraced by courts and the legacy of the parental possession
doctrine remains. For example, as recently as 2004 Justice Gummow of the High Court of Australia,
in a case concerning the detention of refugee children remarked that:
The starting point is the proposition that, at common law, a right of a parent or parents to
custody of children who had not reached the age of discretion (14 for boys and 16 for girls)
incorporates a ‘right of possession’ of the child which includes the right to exercise physical
control over that child.6
1 James Hadley, Introduction to Roman Law in Twelve Academical Lectures (1873) 119, quoted in Bryan A. Garner (ed), Black’s Law Dictionary (9th ed,
2009), 1287.
2 For example John Stuart Mill argued in 1859 in On Liberty that the liberty principle applied ‘only to human beings in the maturity of their faculties’ and
disqualified from its exercise ‘children and young persons below that age which the law may fix as that of manhood and womanhood’: John Stuart Mill, On
Liberty (1859), 8.
3 (1883) 24 Ch D 317.
4 Ibid 336.
5 See John Eekelaar ‘The Emergence of Children’s Rights’ (1986) 6 Oxford Journal of Legal Studies 161.
6 Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1, 57 8 (‘Re Woolley’) (emphasis added) (citations omitted).
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In defence of Gummow J, the context in which this comment was made indicates an intention to
construe parental authority as a means by which to protect the interests of the child.7 However, the
construction of this relationship by reference to a parent’s right of possession is problematic. The
UN Convention on the Rights of the Child (‘CRC’) explicitly rejects this proprietary model in favour
of an approach where parents actually have an obligation to assist children in the realization of their
rights.8
The legacy of the proprietary model can also be found in the response of some courts in cases
which involve a challenge to the legality of corporal punishment administered by parents. Although
there is a trend within national courts to condemn such a practice as a violation of children’s rights,
this trend is far from universal as the Canadian case of Canadian Foundation for Children, Youth
and the Law v Canada (Attorney General)9 illustrates. This case involved a claim that a provision in
the Canadian criminal law, which allowed for the reasonable use of force by parents and teachers
to discipline children, was a violation of children’s rights under the Canadian Charter of Rights and
Freedoms. The rationale underlying the majority’s rejection of this claim was based on two broad
considerations: first, a belief that the relevant law provided ‘parents and teachers with the ability to
carry out the reasonable education of the child without the threat of sanction by the criminal law’ 10;
and second, a belief that:
The decision not to criminalize such conduct is not grounded in devaluation of the child, but
in a concern that to do so risks ruining lives and breaking up families—a burden that in large
part would be borne by children and outweigh any benefit derived from applying the criminal
process.11
But the Court’s ostensible concern for children is misleading. Its real concern is to maintain a family
structure in which parents enjoy the right to use physical force against their children—a right that
has its genesis in the proprietary model of childhood.
The Canadian Supreme Court has built a reputation for using a robust test of proportionality in
which the reasonableness of an interference with a right must be established by the availability of
cogent and persuasive evidence and the need to minimally impair the right.12 But in this case, the
majority overlooked these considerations and retreated to assumptions about the need to ensure
parents can use corporal punishment against their children and a spurious belief that the family
structure will collapse if parents are no longer able to smack their children and are subject to
prosecution if they do. This is despite the growing body of evidence that demonstrates the harm of
corporal punishment, the reasonable availability of alternative non-physical disciplinary techniques
7 Re Woolley (2004) 225 CLR 1, 55–61, [152]–[167].
8 Opened for signature 20 November 1989, 1577 UNTS 3, arts 43–4 (entered into force 2 September 1990). See CRC arts 5, 18(1), 27(2).
9 [2004] 1 SCR 76.
10 Ibid [59] (McLachlin CJ, and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ).
11 Ibid [62] (McLachlin CJ, and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ).
12 R v Oakes [1986] 1 SCR 103.
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and the fact that in those jurisdictions where the practice has been banned, there is no evidence to
suggest that this has led to the disintegration of the family structure.13 The majority of the Court may
not have intended to affirm the proprietary model. But they failed to interrogate the foundations of
the assumptions on which they based their decision. This meant they were unable to disenthrall
themselves from the lingering impact of the proprietary model on the construction of childhood
within society which includes the tolerance of corporal punishment for children.14
5.1.2 The welfare model
The welfare model for the treatment of children emerged in the late nineteenth, early twentieth
century and has tended to dominate judicial thinking about children ever since. Much has already
been written about this model and need not be repeated here. Suffice to say that the development
of this model was motivated by the failings of the proprietary model to ensure the protection and
welfare of children when in the care of their parents or other adults. Its underlying principle is that
children are vulnerable and immature. As such, they lack the capacity and agency to protect
themselves against harm or make decisions in their own best interests. Adults, and the institutions
created by the State, including courts, must therefore act in a way that secures the best interest of a
child.
From a judicial perspective, illustrations of the welfare model and its legacy can be seen in contexts
ranging from decisions to prohibit the publication of the names of children in judicial proceedings,
decisions to force children to undergo medical treatment against their wishes and decisions to
authorize the sterilization of girls with an intellectual disability. In each of these contexts the need to
protect children against harm is achieved by the judicial application of the principle that the best
interests of a child are the primary or paramount consideration. But the impact of the welfare model
extends beyond an application of the best interests principle. For example, the construction of
childhood as a period of immaturity and relative irresponsibility was also a significant factor in the
decision of the majority of the US Supreme Court in Roper v Simmons to prohibit the death penalty
for children under the age of 18.15 The Court held that the death penalty was reserved for the most
serious offenders and that children did not fall within this category because ‘[a] lack of maturity and
an underdeveloped sense of responsibility are found in youth more often than in adults and are
more understandable among the young. These qualities often result in impetuous and ill-considered
actions and decisions.’16 Although the perception of children as immature was not the only factor
that influenced the majority’s reasoning, it played a significant role. Thus it is important to
13 There is a growing body of literature with respect to these issues much of which is available at
<http://www.endcorporalpunishment.org/pages/frame.html> (accessed 28 February 2011).
14 See Canadian Foundation for Children, Youth and the Law v A-G (Canada) [2004] 1 SCR 76, 183 [231] (Deschamps J) (‘Canadian Foundation for
Children’): Deschamps J, dissenting, held that a law allowing for corporal punishment of children by their parents perpetuated notions of children as property.
15 Roper v Simmons 543 US 551, 567 (Kennedy J for Stevens, Kennedy, Souter, Ginsburg and Breyer JJ) (2005).
16 Ibid 15.
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acknowledge that the welfare model carried significant benefits for children relative to the previous
model which was based on the proprietary interests of a father in his children. However, as
Eekelaar notes, the welfare model ‘had its dark side. The duty to advance the interests of the
vulnerable carried with it the power to decide what those interests were’.17 Indeed, it was this
concern that contributed to the emergence of the rights based model.
5.1.3 The rights based model
The children’s rights movement emerged in the wake of the civil rights and feminist movements in
the 1960s. It was against this social and political backdrop, that the Supreme Court of the United
States delivered its judgment In Re Gault18 in 1967—a decision that has been described ‘as the
most important children’s rights case in history.’19 This comment may reflect a very American vision
of history but the decision did represent a watershed in relation to the way in which courts
conceptualized legal issues in matters involving children. Prior to In Re Gault the American juvenile
justice system had operated along a welfare model in which their best interests were the concern of
the State. This meant that children who engaged in criminal offending were denied due process
rights. The US Supreme Court rejected this position and declared that ‘neither the Fourteenth
Amendment nor the Bill of Rights is for adults alone.’20 Children, like adults, were entitled to rights.
Importantly In Re Gault precipitated a paradigm shift in the 60s and 70s in the way in which the US
Supreme Court dealt with matters concerning children. For example, in Tinker v Des Moines
Independent Community School District (‘Tinker’), a case which dealt with children’s right to
expression in public schools, it was held that ‘students in school as well as out of school are
“persons” under our Constitution. They are possessed of fundamental rights which the State must
respect . . . ’21 In Planned Parenthood of Central Missouri v Danforth, Justice Blackmun, in writing
the majority opinion concerning an adolescent’s right to an abortion, proclaimed that ‘constitutional
rights do not mature and come into being magically only when one attains the state-defined age of
majority. Minors, as well as adults, are protected by the Constitution and possess constitutional
rights.’22 In each of these cases the US Supreme Court was prepared to resist historical
17 John Eekelaar Family Law and Personal Life (Oxford University Press USA 2008), 13.
18 387 US 1 (1967).
19 Martin Guggenheim, What’s Wrong with Children’s Rights (Harvard University Press USA 2005), 7.
20 Re Gault, 387 US 1, 13 (Fortas J for Warren CJ, Black, Douglas, Clark, Harlan, Brennan, Stewart, White and Fortas JJ) (1967).
21 393 US 503, 511 (Fortas J for Warren CJ, Black, Douglas, Harlan, Brennan, Stewart, White, Fortas and Marshall JJ) (1969).
22 428 US 52, 74 (Blackmun J for Brennan, Marshall and Blackmun JJ) (1976).
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perceptions as to the status of children and affirm their independent legal status and entitlement to
rights.23
A similar trend emerged in other jurisdictions, most notably in the decision of the UK House of
Lords in 1986, Gillick v West Norfolk and Wisbech Area Authority and Anor,24 in which it was held
that a child who had attained sufficient understanding and intelligence had the capacity to consent
to contraceptive treatment and advice without the consent of her parents. Significantly this decision
was widely adopted throughout common law jurisdictions where it challenged the underlying
principles of both the proprietary model and the welfare model.25 Children were no longer to be
subject to the exclusive control of their parents. Nor were they to be constructed simply as
incompetent and vulnerable beings incapable of expressing their views as to what was in their best
interests.
This judicial development in domestic jurisdictions also coincided with the period in which the CRC
was being drafted and ultimately adopted in 1989—an instrument which has catapulted the concept
of children’s rights into all areas of decisions making involving children, including the courts. Indeed
in 2003 the Committee on the Rights of the Child, the body of independent experts tasked with the
responsibility for monitoring States parties compliance with the CRC, called on all judicial bodies to
systematically consider ‘how children’s rights and interests are or will be affected by their decisions
and actions.’26 A question remains, however, as to what that approach might look like in practice
and it is to this issue that I now turn.
5.2 The features of a substantive rights based approach to the judicial construction of
childhood
The rise of the discourse of children’s rights has not caused concerns about its content and
relevance to disappear. For example, Martin Guggenheim, one of America’s leading advocates and
academics in the area of children and the law, has argued that the concept of children’s rights ‘has
23 Commentators have lamented that this trend which commenced in the late 60s has not been continued in the US: Barbara Bennett Woodhouse, ‘The
Constitutionalization of Children’s Rights: Incorpor-ating Emerging Human Rights into Constitutional Doctrine’ (1999) 2 University of Pennsylvania Journal of
Constitutional Law 1, 8.
24 [1986] 1 AC 112.
25 See John Eekelaar, ‘The Emergence of Children’s Rights’ (1986) 6 Oxford Journal of Legal Studies 161. Faced with the prospect of a doctor providing
contraceptive advice to a young girl without her mother’s consent, the lower courts in England were content to maintain a parent’s right to physical
possession over a child thereby, in the words of Eekelaar, ‘annihilating’ the prospect for any recognition of the autonomy interests of children: ibid 180. In
contrast the majority of the House of Lords were prepared to hold that a child who had attained sufficient understanding and maturity had the full capacity to
enter into legal relationships without the consent of his or her parents.
26 CRC Committee, General Comment No 5: General Measures of Implementation of the Convention on the Rights of the Child (Articles 4, 42 and 44(6)),
34th sess, [12], UN Doc CRC/GC/2003/5 (2003) (‘General Comment No 5’).
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less substantive content . . . than many would suppose . . . [and] . . . has provided very little by way
of a useful analytic tool for resolving knotty social problems.’27 In contrast the UK scholar Jane
Fortin has argued that:
By articulating children’s interests as rights, and incorporating evidence traditionally
associated with ideas about their best interests, within such rights, the courts can develop a
more structured and analytical approach to decision making.28
Such a polarization of views presents a challenge for those courts that may be urged to embrace a
rights based approach. What is important to remember, however, is that although Guggenheim and
Fortin refer to the same slogan, their understanding of the concept of children’s rights is very
different. Guggenheim’s vision is wedded to the experience of children’s rights in the USA whereas
Fortin locates her analysis within the context of the Human Rights Act and the European
Convention for the Protection of Human Rights and Fundamental Freedoms. The analysis in this
chapter proceeds from yet another basis, namely the vision of children’s rights under the CRC.
Although this vision is contested there are four core principles that inform a rights based
construction of childhood by courts. First, a recognition that children have rights.29 Second, a
recognition that parents have primary responsibility for the care and upbringing of a child.
Importantly this relationship is not defined by a parental right of possession or control but an
obligation to provide guidance and assistance to a child to ensure the realization of his or her rights,
subject to the evolving capacities of the child.30 Third, a requirement to ensure the best interests of
children are, as a minimum, a primary consideration in all matters concerning them.31 Subject to a
few exceptions, such as adoption and child protection, a child’s best interests are not to be the
paramount consideration for a court in matters concerning children. Thus, whereas the
paramountcy principle demands that a child’s best interests must be the overriding and dominant
(although not exclusive) consideration in any judicial proceedings, the primary principle does not
require such a level of judicial deference. At the same time, a child’s best interests cannot be
readily dismissed and a heavy burden is cast on the party seeking to displace the best interests of
child to establish a legitimate and compelling reason to justify such an approach.32
The fourth core principle for courts to consider relates to the process for the determination of a
child’s best interests. This principle has been repeatedly criticized for its apparent indeterminacy
and its potential to be interpreted by reference to the subjective preferences of a decision maker.
27 Guggenheim, above n 20, xii.
28 Jane Fortin, ‘Accommodating Children’s Rights in a Post Human Rights Act Era’ (2006) 69 Modern Law Review 299, 326.
29 See CRC art 2 (the principle of non discrimination).
30 See CRC arts 5, 18, 27.
31 See CRC art 3.
32 Philip Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ in Philip Alston (ed), The Best Interests of the Child:
Reconciling Culture and Human Rights (1994) 1.
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Under the CRC, however, this principle must be interpreted by reference to the other rights under
the CRC.33 Of particular significance is article 12(1) which provides that a State must assure to a
child who is capable of expressing a view, the right to have those views heard in any matters
affecting the child. Moreover, article 12(2) specifically provides that a child must be given an
opportunity to be heard in any judicial proceedings affecting him or her. This emphasis on the
participation of children serves to distinguish a rights based approach from traditional welfare based
approaches where children’s voices remained, if not completely silenced, then seriously
marginalized relative to the views of adults. Importantly children’s views are not necessarily
determinative of their best interests under a rights based model and a court must give such views
due weight according to the age and maturity of a child.
A further factor for a court to consider when determining the best interests of a child is the
availability of any empirical evidence in relation to the child specifically or of children more
generally, which is of relevance to the issues before the court. The requirement to adopt an
evidence based approach operates to reduce the indeterminacy of the best interests principle and
mitigate the potential for judges to substitute their own subjective or speculative preferences as to
what amounts to a child’s best interests. It therefore serves to allay the concerns expressed by the
Chief Justice of the Canadian Supreme Court that the best interests principle is incapable of ‘being
identified with some precision’.34 It may not be amenable to a mathematical formula but a process
does exist by which to generate the meaning of a child’s best interests in the circumstances of each
case. Importantly this process requires more than an assessment of a child’s ‘well being’—an
approach which was recently adopted by the UK Supreme Court35 and simply substitutes one
ambiguous phrase with another. The process for the determination of a child’s best interests
requires a consideration of: (a) the wishes of a child; (b) the relevance of any other rights under the
CRC; (c) the particular circumstances of the child as informed by the views of any persons caring
for, or working with, the child; and (d) any available empirical evidence that may be of relevance.
Having mapped out, albeit in a cursory fashion, the features of a rights based approach that are
most salient for courts, it is now appropriate to consider the means by which courts can apply these
principles in a substantive way, what I have termed a ‘substantive rights’ approach. Importantly this
approach is not homogenous. However, in terms of illustrating when a court will satisfy the features
of such an approach, it is convenient to examine the different areas in which a consideration of
children’s rights may be relevant for a court. These are identified as being: (a) the conceptualization
of the issues before the court; (b) the procedures to be adopted for the determination of the issues;
(c) the meaning to be given to the content of the rights in question; and (d) the substantive
reasoning by which to resolve the issues and balance any competing interests.
33 This argument is based on the principle of internal system coherence. See John Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights
Treaty Interpretation’ (2010) 23 Harvard Human Rights Journal 1. See also Philip Alston, n 33 above.
34 Canadian Foundation for Children [2004] 1 SCR 76, 591.
35 ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148, 159 [26], 160 [29], 162 [33] (‘Tanzania’).
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5.2.1 Conceptualization of the issues
The archetypal example of how to conceptualize the issues in a case concerning children from a
substantive rights perspective, is the approach taken by Baroness Hale of Richmond in R
(Williamson) v Secretary of State for Education and Employment (‘Williamson’).36 This matter
concerned the legality of a ban on corporal punishment in English schools. When the matter finally
reached the House of Lords, as it then was, Baroness Hale of Richmond declared:
My Lords this is and has always been a case about children, their rights and the rights of
their parents and teachers. Yet there has been no one here or in the courts below to speak
on behalf of children. No litigation friend has been appointed to consider the rights of the
pupils. . . . No non-governmental organisation . . . has intervened to argue a case on behalf
of children as a whole. The battle has been fought on ground selected by the adults.37
Prior to the case arriving before Baroness Hale, the matter had managed to traverse its way
through the English judicial system without any discussion as to the relevance of children’s rights.
Instead the case had been confined to an analysis as to the nature of the religious beliefs on which
the parents sought to assert their right to have their children subject to physical discipline in
schools.38 Under a substantive rights approach, in any case concerning children, the issues must
be conceptualized through a prism in which the rights of children are identified as being central to
the issues to be determined by the court.
5.2.2 The procedures adopted for the resolution of the issues
Not surprisingly the decision of Baroness Hale of Richmond in Williamson also provides an
illustration of the impact on the procedures of a court when a rights based approach is adopted.
After identifying the centrality of children’s rights to the issue of corporal punishment, she lamented
that:
. . . there has been no one here or in the courts below to speak on behalf of the children.
No litigation friend has been appointed to consider the rights of the pupils . . . no non36 [2005] 2 AC 246.
37 Ibid 271 [71].
38 It is important to note, as Jane Fortin brought to my attention, that the UK Secretary of State had not raised the issue of children’s own rights because
English law maintains that parents have a right to physically punish their children. Thus procedurally the case was presented to the English courts as if the
issue for resolution was confined to the legitimacy of the state’s attack on the religious rights of parents. This narrow position however did not prevent
Baroness Hale of Richmond from identifying the central importance of children’s rights to the issue. Had there been a procedural entitlement for children to
receive separate representation it is likely, assuming the involvement of competent counsel, that the relevance of children’s rights would have been raised at
a much earlier stage in the proceedings.
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governmental organisation . . . has intervened to argue a case on behalf of children as a
whole. The battle has been fought on ground selected by the adults.
This concern about an absence of a procedure to assure that children’s views were made known to
a court, is consistent with the obligation on States parties to the CRC under article 12 to ensure that
children must be provided with the opportunity to be heard in any proceedings affecting them either
directly or indirectly or through a representative or an appropriate body.39
Importantly, a rights based model has an impact on the procedures adopted by a court beyond
ensuring adequate representation of a child in a proceeding. They must extend to every aspect of
the proceedings including the way in which a child gives evidence, the length of the sitting day,
where and with whom a child sits, the physical arrangement of the court itself, the extent to which
the public have access to the court and the publication of any proceedings by the media. A detailed
discussion of these issues is beyond the scope of this chapter. By way of illustration, however, the
decision of the European Court of Human Rights in V v United Kingdom40 is worth noting. This case
related to the conviction of two young boys for the murder of a toddler. The Court held that the
failure to adopt procedures tailored to the age of the boys in terms of sitting hours and the court’s
layout, meant that the boys were unable to participate effectively in the proceedings. This in turn
constituted a violation of their right to a fair hearing.41
5.2.3 The meaning given to the content of the rights in question
A substantive rights approach to matters concerning children demands an approach that is similar
to the way in which feminism has demanded an interpretation of rights that is grounded in and
reflects the experiences of women. In other words, courts must inform the content of a right by
reference to the experiences of children. Thus, for example, when the European Court of Human
Rights had to determine the nature and scope of the right to a fair hearing in V v United Kingdom, it
considered the specific measures required to ensure the effective enjoyment of this right from the
perspective of 10-year-old boys as opposed to adults. Similarly, when determining the content of
the prohibition against inhuman and degrading treatment, as Baroness Hale of Richmond has
noted, ‘The European Court of Human Rights has taken particular note of the vulnerability of
children in its judgments on the obligations of the state to protect people from inhuman and
degrading treatment’.42 Thus, for example, the European Court of Human Rights has held that the
defence of reasonable chastisement did not provide a child with sufficient protection against
39 See: Judy Cashmore and Patrick Parkinson, The Voice of a Child in Family Law Disputes (Oxford University Press USA 2008); David Archard and Marit
Skivens, ‘Balancing a Child’s Best Interests and a Child’s Views’ (2009) 17 International Journal of Children’s Rights 1.
40 (1999) 30 EHRR 121.
41 Ibid 181.
42 E v Chief Constable of the Royal Ulster Constabulary [2009] 1 AC 536, 543.
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inhuman and degrading treatment,43 while a failure by authorities to respond to situations of
prolonged neglect and abuse was also a violation of this right.44
5.2.4 The substantive reasoning adopted by courts to resolve legal issues that arise in cases
concerning children
The final feature of a substantive rights approach concerns the reasoning adopted by a court in the
resolution of the relevant legal issues. With respect to those matters where the paramountcy
principle applies, such as adoption, as the England and Wales Court of Appeal held in F & H
(Children),45 this tends to mean that a child’s best interests are ‘more important than anything else’
and the ‘rights of adults are . . . subservient to those of the children’.46 A substantive rights
approach does not mean, however, that the rights and best interests of a child are the only
consideration and it remains incumbent upon a court to adopt an inclusive approach whereby due
consideration is given to the rights and interests of any other persons that may arise in the context
of an issue in which a child’s rights and best interests are paramount.47
This is exactly what the South African Constitutional Court did in Du Toit & Anor v The Minister for
Welfare and Population Development & Ors (2003)48 when it recognized that it was not only the
best interests of children that were violated by a prohibition against persons in a same sex
relationship from making a joint application for adoption. It also held that this prohibition was a
violation of the constitutional right of the adults to equality before the law and protection against
unfair discrimination on the basis of their sexual orientation.49 But in relation to those matters in
which a child’s interests and rights are merely a primary consideration, a more sophisticated and
nuanced balancing of the competing rights must be adopted. This balancing will be required in
several different and potentially overlapping contexts. They include when there is a judicial dispute
43 A v United Kingdom [1998] VI Eur Court HR 2692, 2699.
44 Z v United Kingdom [2001] V Eur Court HR 1, 24–5; E v United Kingdom (2002) 36 EHRR 519, 523–8.
45 F and H (Children) [2007] EWCA Civ 880 (24 August 2008).
46 Ibid [32] (Wall LJ).
47 See comments of Sachs J in S v M (Centre for Child Law as Amicus Curiae) [2008] 3 SA 232, 249 [26] (Constitutional Court) (‘S v M’) with respect to the
provision under the South African constitution, section 28(2) that the best interests of the child have paramount importance in every matter concerning a
child (‘the fact that the best interests of the child are paramount does not mean that they are absolute. Like all rights in the Bill of Rights their operation has
to take account of their relationship with other rights, which might require that their ambit be limited’).
48 [2003] 2 SA 198, 207–8 (Skweyiya AJ for Chaskalson CJ, Langa DCJ, Ackermann, Goldstone, Kriegler, Madala, Ngcobo, O’Regan, Sachs JJ, Du Plessis
and Skweyiya AJJ).
49 Ibid paras 208–9.
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concerning: (i) a child and other children; (ii) a child and his or her parents, (iii) a child, his or her
parents and the State and (iv) a child and the State.
5.2.4.1 A dispute between children
In relation to the resolution of a dispute in which a child’s claim to a right must be tempered against
the rights of other children, the decision of the House of Lords in R (on the application of Begum (by
her litigation friend)) v Headteacher and Governors of Denbigh High School50 provides an example
of how to resolve such a case consistently with a substantive rights approach. This matter involved
a claim by a young girl that a ban on wearing the Islamic jilbab to her school was a violation of her
right to freedom of religion. Although a majority of the Law Lords held there had been no
interference with the girl’s right, they still proceeded to assess whether the ban would have been
reasonable in the circumstances. In concluding that this was the case, some members of the House
of Lords placed significant emphasis on the fact that the school had adopted a consultative process
in designing its school policy.51 Importantly this process enabled several students to express their
concerns that if other students were allowed to wear the jilbab, this would place undue social
pressure on them to do the same.52 Thus, the reasonableness of the restriction was informed in
part by the need to ensure that the students attending the school were also able to enjoy their
effective right to freedom of religion—a decision that was also enabled by the fact that the student
claiming the violation of her rights was able to attend other public schools that did not impose a
restriction on the wearing of the jilbab.
The significance of this case to this analysis is that it demonstrates the need for courts to give
careful consideration to rights of all those children in a dispute which may be of concern to them
even in circumstances where they may not be directly involved in the proceedings. As to where the
balance must ultimately be drawn by a court, this will depend on the facts of each case. The critical
consideration however is the need for a court to give explicit and sensitive consideration to the
competing interests of any children in a case.
5.2.4.2 A dispute concerning a child and his or her parents
The classic judicial dispute between a child and his or her parents concerns access to information
relevant to family planning or medical procedures to terminate a pregnancy. In such matters, as the
above discussion of cases such as Gillick demonstrates, courts must not treat children as merely
an appendage of their parents to whom the interests of children would become entirely subservient.
A substantive rights approach concedes that a child of insufficient maturity and understanding will
remain dependent on his or her parents. Indeed, article 5 of the CRC effectively requires that a
50 [2007] 1 AC 100.
51 See ibid 117 [33] (Lord Bingham), 119, 125 (Lord Hoffmann), 135 [98] (Baroness Hale of Richmond).
52 See ibid 125 [65] (Lord Hoffman); 135 [98] (Baroness Hale of Richmond).
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court, as a representative of the State, must respect the responsibilities, rights and duties of parents
. . . to provide appropriate direction and guidance in the exercise of a child’s rights. This
responsibility, however, remains subject to the caveat that it must be exercised ‘in a manner
consistent with the evolving capacities of the child.’ Thus as the House of Lords determined in
Gillick, a child of sufficient understanding and maturity has the capacity to enter into legal
relationships without the consent of his or her parents—a position that has been endorsed in
numerous jurisdictions by domestic courts.53
A grey zone exists, however, in those circumstances in which a child clearly expresses a view
which is contrary to the wishes of his or her parents but lacks sufficient understanding and maturity
for his or her views to be determinative of the issue. In such cases, a substantive rights approach
demands that judges must apply the best interests principle in forming a decision. Importantly the
assessment of the child’s best interests is not to be reduced to the views of the parents or indeed
those of the presiding judicial officer. Instead the assessment of the child’s best interests must
involve a process that takes into account any available empirical evidence, the individual
circumstance of a child and the impact of a court’s decision on the other rights to which a child is
entitled under the CRC.
5.2.4.3 A dispute concerning a child, his or her parents and the State
Judicial disputes which concern children, their parents and the State tend to fall into two
categories—those in which a child is the dominant subject of concern in the proceedings and those
in which he or she is the secondary subject of concern. In relation to the first category this would
include cases arising out of circumstances in which the State seeks to take measures to protect
and secure the rights of children which are contested by certain parents. Measures to prohibit
corporal punishment are an example of such a case. Although the lower courts in England in the
case of Williamson did not conceptualize this issue in such terms, when the matter went before the
House of Lords, Baroness Hale of Richmond was able to identify the interests of all three parties.
Importantly she did not fall into the trap of a superficial rights approach and simply declare that the
ban on corporal punishment was lawful because it sought to advance the rights of children. Instead
she carefully examined the rights of children and their parents which were relevant in the context of
a prohibition of corporal punishment in schools and the role of the State in ensuring that an
appropriate balance was struck between these rights. She therefore concluded that the ban on
corporal punishment was a limitation on the right of the parents to manifest a belief that their
children must be subject to such a practice.54 But this interference was found to be justified
because it pursued a legitimate aim, namely the protection of children’s rights including their rights
under the CRC.55
53 See, eg, Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218 (‘Marion’s Case’); Re A (1993) 16 Fam LR 715; JSC v
Wren (1986) 35 DLR (4th) 419.
54 Williamson [2005] 2 AC 246, 273 [78].
55 Williamson [2005] 2 AC 246, 274 [80].
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Importantly a substantive rights approach does not demand that the balance must always favour
the rights and interests of children in disputes which concern children, their parents and the State.
Indeed, in matters where children are the secondary as opposed to the primary subject of concern,
there is always the prospect that the balance may favour the rights and interests of the other
parties. The approach adopted by Justice Sachs of the South African Constitutional Court in M v
State (2007) when dealing with the question of whether to imprison a primary caregiver of young
children for criminal offences provides a good example of a matter where this may be the case.
The issue before the Constitutional Court was whether the requirement under the South African
constitution that a child’s best interests must be the paramount consideration in every matter
affecting them, required greater consideration of children’s rights in the sentencing process than
had previously been the case. Justice Sachs, with whom the majority concurred, rejected the
submission by the State that it was sufficient to consider the children of an offender as merely a
‘personal circumstance’ of a defendant to be taken into account in sentencing.56 Instead he
accepted that a child of a primary caregiver is an individual whose interests need to be considered
independently and balanced against all the varied interests involved.57 Importantly Justice Sachs
did not suggest that this balancing exercise would always favour the imposition of a non custodial
sentence on a primary caregiver. Indeed, he explained that ‘[a] balancing exercise has to be
undertaken on a case-by-case basis’ in which the State’s legitimate interest in punishing offenders,
not only the interests of a child, must be given appropriate consideration.58 On the facts of the case
Justice Sachs ultimately decided to suspend the term of imprisonment originally imposed by the
lower courts on a mother of three children and place her on a correctional order with various
conditions. But it was the ‘new way of thinking’ that Justice Sachs advocated rather than the
outcome that has led to this case being cited in jurisdictions around the world.
5.2.4.4 A dispute concerning a child and the State
The final category of judicial dispute in which children typically tend to be involved concerns those
matters where there is a dispute between a child and the State. The most common example of such
a dispute is when children are subject to criminal law proceedings. But it may also arise in other
circumstances such as an attempt by a student to resist the imposition of, for example, a curfew or
restrictions on a child’s freedom of expression in schools, deportation proceedings, exclusion from
school or the wearing and/or carrying of religious symbols in schools.
The adoption of a substantive rights approach in the reasoning adopted by judges to resolve such
disputes demands that they must proceed on the basis that children have rights and conceptualize
the issue in terms of these rights. Once it is established that an interference with these rights has
occurred, judges must perform a proportionality analysis to carefully assess whether the
56 The existing approach to sentencing in South Africa was based on what is referred to as the ‘Zinn triad’—a model which considers the nature of the
crime, the circumstances of the criminal and the broader interests of the community.
57 S v M [2008] 3 SA 232, 250 [30] (Constitutional Court).
58 Ibid [37].
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interference or limitation with the relevant rights are justified.59 Under the model of children’s rights
which is based on the CRC, justification will be established when the limitation is undertaken in
pursuit of a legitimate aim and the measures to achieve this aim are reasonable and proportionate
in all the circumstances.60 Importantly, the assessment as to the necessity of a limitation must be
made on the basis of objective considerations and the burden of justification will lie with the State
which must use no more restrictive means than are required for the achievement of the purpose of
the limitation.61
The judicial treatment of curfews within the USA provides a good illustration of the impact on a
court’s reasoning when it demands that a State provide objective evidence in support of its
interference with children’s rights to equality before the law and freedom of movement. Although
curfews are common within many States within the USA they have generally been upheld when
challenged in the courts. The exception to this trend was the decision of the US Court of Appeal for
the Second Circuit in Ramos v Town of Vernon (2003).62 Here the Court was not prepared to simply
accept at face value the submissions of the authorities that the curfew was necessary to achieve
aims such as a reduction in juvenile crime, the protection of the general public and the protection of
young people themselves. The Court stressed, ‘the unreliability of assumptions and generalizations
as justification for laws infringing on the constitutional rights of minors’63 and sought to interrogate
the authorities further and demand that evidence be provided in support of the claim that a curfew
would achieve these aims. When no such evidence could be tendered—the Court observed that
there was ‘a conspicuous lack of relationship between the contours of the problem identified by the
Vernon Town Council and the curfew ordinance enacted in response’64—the curfew was held to be
unconstitutional.
5.3
Courts’ engagement with a rights based approach
5.3.1 An invisible rights approach
Not all courts adopt a substantive rights approach when dealing with matters that concern children.
Indeed, the extent to which they do so can be located along a spectrum which ranges from the nonexistent (‘invisible rights approach’) to the substantive rights approach with the following
59 For a discussion in relation to the doctrine of proportionality, see Richard Clayton and Hugh Tomlinson, The Law of Human Rights (Oxford University
Press, 2000) 278–303.
60 This formula represents a summary of the various steps required under The Siracusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights, UN ESCOR, 41st sess, Annex, [12], UN Doc E/CN.4/1985/4 (1984) [10].
61 Ibid [11]–[12].
62 353 F 3d 171, 176–81 (Cardamone J for Cardamone and Sack JJ) (2nd Cir, 2003).
63 Ibid 181 [30].
64 Ibid 186 [7].
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approaches in between—incidental, selective, rhetorical and superficial. I have explained these
approaches in detail elsewhere65 and it is sufficient to note here that under an invisible rights
approach, courts fail to identify the relevance of rights to any aspect of the proceedings and instead
adopt an approach that conforms to the proprietary or welfare models.
5.3.2 An incidental rights approach
Under an incidental rights approach, children’s rights are identified as being relevant but not
essential to the conceptualization or resolution of the issues before a court. For example, the
Canadian Case of VM v British Columbia (Director of Child, Family and Community Service)66
involved a challenge to a blood transfusion for two infants whose parents were members of the
Jehovah’s Witness Church. The court identified the relevance of an infant’s right to life but this
concern was only incidental and the case was ultimately said to ‘lie at the intersection of the rights
and responsibility of parents to make sound health care decisions for their children and the duty . . .
of the state to override that right in appropriate circumstances . . . ’.67
5.3.3 A selective rights approach
A selective rights approach occurs when a court makes significant rather than incidental references
to children’s rights to inform or defend its resolution of the issues. However, it is selective in the
sense that the analysis offered is not grounded in a comprehensive and internally coherent
application of a rights based approach. A good illustration of this approach is the decision of the US
Supreme Court in Roper v Simmons. The Court held that the imposition of the death penalty on a
person below the age of 18 was a form of cruel and unusual punishment and thus unconstitutional.
In forming its decision the majority of the Court drew on international law and the provisions of
international instruments such as the CRC to confirm its position as to the illegality of the death
penalty for children.68 Remarkably, however, although the US Supreme Court thought it proper to
embrace the first limb of article 37(a) of the CRC which prohibits the death penalty for juveniles, it
overlooked the second limb of this provision which prohibits life imprisonment for children without
the possibility of release. The adoption of such a selective approach to children’s rights weakens
the rigour of the Court’s decision and lends support to those who criticize recourse to international
65 See John Tobin, Judging the Judges: Are they Adopting the Rights Approach in Matters Involving Children?’ (2009) 33 Melbourne University Law Review
579.
66 2008 BCSC 449 (13 June 2008).
67 Ibid [1].
68 Roper v Simmons 543 US 551, 578 [22]–[23].
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standards in domestic forums as a form of ‘smorgasbording’ whereby judges select only those
standards that will confirm their position.69
5.3.4 A rhetorical rights approach
A rhetorical rights approach represents the dilemma that confronts courts as they seek to move
from a welfare approach to a rights based approach. It is best illustrated in the context of matters
which involve an attempt by a child to refuse medical treatment. The decision of the House of Lords
in Gillick may have ushered in the idea of a rights based approach within common law jurisdictions.
But it has been suggested that the application of this test, and similar versions which have been
adopted in other jurisdictions, can be used to cloak paternalistic decisions regarding treatment of
children in the rhetoric of their rights.70 Potter, for example, has argued that courts have regularly
held children to be competent in the context of access to contraceptive advice and abortions but
repeatedly denied their competency when they seek to refuse life saving treatment despite
evidence to suggest that the children in question are fully aware of the consequences of their
decision.71 Such an approach is termed the ‘rhetorical rights approach’ because it embraces the
rhetoric of rights to the extent that children are told that their autonomy will be respected when in
truth a welfarist approach model is adopted by a judge.
5.3.5 The superficial approach
Finally the superficial rights approach involves a court identifying the central relevance of children’s
rights to the issues to be decided but then fails to consider the actual scope and nature of the rights
in question and/or fails to undertake a rigorous assessment as to the manner in which such rights
must be balanced against any competing considerations. The decision of the International Court of
Justice (‘ICJ’) in the 2005 case Armed Activities on the Territory of the Congo (Democratic Republic
of Congo v Uganda) (‘Armed Activities Case’)72 provides an example of this approach. The ICJ had
before it ‘convincing evidence of the training in UPDF training camps of child soldiers and the
UPDF’s failure to prevent the recruitment of child soldiers in areas under its control’.73 This in turn
69 See, eg, Justice Antonin Scalia and Justice Stephen Breyer, ‘The Relevance of Foreign Legal Materials in US Constitutional Cases: A Conversation
between Justice Antonin Scalia and Justice Stephen Breyer’ (2005) 3 International Journal of Constitutional Law 519, 521–2.
70 Michael Freeman, ‘Rethinking Gillick’ (2005) 13 International Journal of Children’s Rights 201, 206–8, 211–12; Melinda T. Derish and Kathleen Vanden
Heuvel, ‘Mature Minors Should Have the Right to Refuse Life-Sustaining Medical Treatment’ (2000) 28 Journal of Law, Medicine and Ethics 109, 112–13.
71 Jamie Potter, ‘Rewriting the Competency Rules for Children: Full Recognition of the Young Person as Rights-Bearer’ (2006) 14 Journal of Law and
Medicine 64, 67.
72 General List No 116 (Unreported, International Court of Justice, 19 December 2005).
73 Ibid [210].
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gave rise to a question as to whether Uganda had failed in its obligations with respect to the
recruitment of child soldiers under international law. In addressing this concern the ICJ recited all
the human rights and humanitarian law instruments to which the States were party.74 It then listed
the specific provisions of these instruments which Uganda was alleged to have violated and
concluded that the UPDF ‘did not take measures to ensure respect for human rights and
humanitarian law in the occupied territories.’75
At no stage, however, did the ICJ engage in any substantive analysis as to the content and scope
of the international obligations concerning child soldiers which Uganda had assumed.76 It simply
decided that the relevant instruments had been violated in light of evidence as to the training and
recruitment of children. The facts may well have justified the ICJ’s findings but its ‘oracular’77
tendencies create a void in its reasoning that undermines the legitimacy of its decision and provides
an illustration of a superficial rights approach in judicial reasoning. This approach can be
legitimately criticized for the quality of its reasoning. Moreover, in this case the ICJ did have
jurisdiction to examine whether children’s rights under international law had been violated but it
failed to adopt a substantive rights approach. However, other courts may well be constrained by
various factors in their ability to engage with this new way of thinking. The legitimacy of these
constraints will be examined in the final part of this chapter.
74 Ibid [217].
75 Ibid [211].
76 More specifically its consideration of the evidence with respect to the training and recruitment of children was dissociated from the actual content of the
provisions of Additional Protocols I and II to the Geneva Conventions, the Convention on the Rights of the Child, art 38 and the Optional Protocol on the
Involvement of Children in Armed Conflict, none of which impose an absolute prohibition on the recruitment of children. See Protocol Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June
1977, 1125 UNTS 3, arts 77(2)–(3) (entered into force 7 December 1978) (‘Additional Protocol I’); Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS
611, arts 4(3)(c)–(d) (entered into force 7 December 1978) (‘Additional Protocol II’).
77 See Antonio Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 European Journal of
International Law 649, 651, which argues with respect to Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Serbia and Montenegro) (Merits), General List No 91 (Unreported, International Court of Justice, 26 February 2007) that ‘the reader
expecting a closely-argued decision will be left instead with the impression that the Court’s holdings have a tinge of oracularity (oracles indeed are not
required to give reasons).’
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5.4 The capacity of courts to engage with a substantive rights approach
A number of factors influence the level of engagement by courts with a rights based approach.
These include the nature of the proceedings, procedural considerations78 and the capacity of
lawyers to make submissions based on the rights of a child. Space does not permit a detailed
discussion of these matters. Instead attention will be focused on two key factors that impact on the
capacity of a court to adopt a rights approach—the existence of institutional constraints or
opportunities to adopt this approach and the preparedness of a court to adopt an interpretative
theory that embraces the notion of children as rights bearers.
5.4.1 The existence of institutional constraints and opportunities
Although nearly all States have ratified the CRC, in many jurisdictions the domestic legislative
framework in relation to matters concerning children is still dominated by the welfare model. This
represents a potentially serious institutional constraint on the extent to which courts can engage
with a new way of thinking about children given that courts must interpret and apply the existing
law. At the same time, the extent of this constraint should not be overestimated as an increasing
number of States have adopted constitutions, which actually recognize the rights of children and
thus demand a consideration of these rights.79 South Africa is an example of such a State. Indeed,
it is for this reason that Justice Sachs in M v State declared that ‘courts must function in a manner
which at all times shows due respect for children’s rights’.80 As a consequence, far from operating
as an institutional constraint, the domestic legal system in South Africa mandates that courts adopt
a substantive rights approach in matters involving children.
But even in those jurisdictions where there is no constitutional or legislative protection of children’s
rights, there remains the potential for courts to adopt a construction of childhood that is consistent
with a rights based approach. This is because the process of adjudication does not simply involve
the identification and mechanistic application of the law to the facts in a case. Instead, as
commentators such as Dworkin and Waldron have argued, an element of moral reasoning informs
every aspect of the adjudicative process81—how a dispute is conceptualized, the procedures
adopted, the content of each right and where the balance is ultimately drawn between competing
rights. When that moral reasoning is informed by the values that underpin a rights based approach,
a court may be able to adopt decisions which conform to the values underlying this model despite
the absence of express authority to do so.
78 For example, whether the proceedings are initiated by adults or concern children directly and whether the system provides children with a right to
representation.
79 See generally John Tobin, above n 34, 110–15.
80 S v M [2008] 3 SA 232, 244 [15] (Constitutional Court).
81 Jeremy Waldron, ‘Judges as Moral Reasoners’ (2009) 7 International Journal of Constitutional Law 2, 12; Ronald Dworkin, Law’s Empire (Belknap Press
Cambridge Mass 1986) 238–58.
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There will of course be limits with respect to how far this model can be pursued by a judge. As
Waldron has explained, the moral reasoning of judges is, in contrast to pure moral reasoning,
constrained by legal precedents and/or legislative imperatives that cannot necessarily be swept
aside. Judges are not free to ‘drop inconvenient lines of precedent or modify propositions embodied
in authoritative texts’.82 Or to borrow the words of Dworkin, the task of a judge is not ‘to plant the
flag of his [or her own moral] convictions over as large a domain of power or rules as possible’.83 It
is also true that in the absence of any form of express rights protection within a State, constitutional
or otherwise, it is more difficult for a judge to justify the adoption of a substantive rights approach.
At the same time, courts are not completely precluded from the adoption of such an approach. As
Dworkin has explained, ‘the dynamics of interpretation resist as well as promote convergence’
(emphasis added) and ‘the centrifugal forces are particularly strong where the profession as well as
the larger community is divided over justice.’84 In other words, where there are competing visions of
how to deliver just outcomes for children, there is more potential for judges to adopt a vision that
represents a departure from the orthodox or established vision. With respect to the treatment of
children, the historical insistence on the welfare model has been increasingly challenged by the rise
of rights discourse as the most appropriate model to secure just outcomes for children. Indeed, it
has been suggested by commentators that ‘children’s rights have . . . become perhaps the
dominant programme within a social system which makes sense of the adult/child relationship’85
and that advocacy for international children’s rights is ‘one of the most powerful social movements
of the twentieth century’.86 Although it remains debatable as to whether the status of children’s
rights has reached such a zenith, it is difficult to resist the argument that this concept has now taken
a firm rooting in what Dworkin would describe as the ‘general intellectual environment’ in which
judges think about the process of adjudication.87
Historically this environment, defined first through a prism of property rights and then welfarism,
would have imposed a real and significant constraint on the capacity of judges to engage with a
substantive rights approach when dealing with matters concerning children. The emergence of
children’s rights, however, provides an increasing opportunity for courts that engage with this model
to occupy what Dworkin might describe as the ‘cutting edge’ of interpretation as opposed to offering
idiosyncratic ramblings.88 So while a court entertaining the idea of a child having rights may once
have been considered heretical, shifting social values mean that this is no longer the case. A
question remains, however, as to when and why a court would develop an interpretative theory in
82 Waldron, above n 82, 13.
83 Dworkin, above n 81, 211.
84 Ibid 88.
85 Michael King, ‘The Child, Childhood and Children’s Rights within Sociology’ (2004) 15 King’s College Law Journal 273, 275.
86 Jude Fernando, ‘Children’s Rights: Beyond the Impasse’ (2001) 575 The Annals of the American Academy of Political and Social Science 8, 10.
87 Ronald Dworkin above n 82, 88.
88 Ibid.
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which the moral reasoning it adopts in the resolution of a dispute concerning a child will resist a
traditional welfare model in favour of a rights based approach. It is to this final issue that I now turn.
5.4.2 Judicial receptivity to an interpretative theory that embraces the notion of children as
rights bearers
Divergence amongst judges with respect to their engagement with the notion of children as rights
bearers should not come as a surprise. It reflects Dworkin’s observation that ‘each judge’s
interpretative theories are grounded in his (sic) own convictions’89 and the reality that ‘Judges think
about law . . . within society, not apart from it . . . ’90 It therefore follows that in a general intellectual
environment where the idea of children’s rights is competing with alternative models of how best to
deal with children, such pluralism will also be reflected in the construction of children by courts.
Some judges will actively embrace the notion of children as rights bearers whereas others will be
less familiar with or receptive to the model and lack the capacity or preparedness to apply it to the
resolution of disputes involving children.
With respect to the treatment of children’s rights by courts in the United Kingdom, for example,
Fortin has identified ‘a judicial ambivalence’ over the extent to which courts are required to
articulate matters concerning children in terms of their rights.91 Even Justice Sachs himself admitted
that his first inclination in the case of M v State was not to conceive of the issues in terms of the
rights of the children. Thus, there is a degree of randomness in the extent to which courts engage
with this new way of thinking. At the same time Sloth-Neilsen and Mezmur have observed that
within the South African context, the trend towards ‘the individual pre-disposition of some judges to
raise children’s rights mero motu’ is linked to ‘their prior history in the children’s rights movement,
some having participated in early conferences which shaped the drafting of the constitutional clause
on children’s rights’92 under the South African Constitution.
The significance of this observation is that judicial engagement with elements of a substantive
rights approach is assisted by prior exposure to the values that underpin this model. Although this is
hardly a remarkable finding it tends to confirm the relevance of the recommendations which are
repeatedly made by the CRC Committee that States provide training and education to judges in
89 Ibid 87.
90 Ibid 88.
91 Jane Fortin above n 29, 305.
92 Julia Sloth-Nielsen and Benyam D Mezmur, ‘2 + 2 = 5? Exploring the Domestication of the CRC in South African Jurisprudence (2002–2006)’ (2008) 16
International Journal of Children’s Rights 1, 3–4.
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relation to children’s rights.93 Indeed, Sloth-Nielsen and Mezmur have noted in the context of South
Africa that it was ‘not unwarranted to mention that various training initiatives may already be
showing an impact in the jurisprudence emanating from the courts.’94 This tends to confirm the
need for and benefit of training judges about children’s rights as a way of shaping the framework of
moral reasoning and interpretative theory they apply when resolving a case in a way that is
consistent with the various dimensions of a substantive rights approach. It also affirms the
important role of procedures which enable the rights of children to be brought to the attention of
judges and the role of lawyers using those procedures to contribute to judges’ awareness and
understanding of children’s rights.95
5.5 Conclusion
In a recent case before the United Kingdom Supreme Court involving a challenge to a deportation
of a child, Baroness Hale discussed the duty of courts to ensure the participation of children in such
proceedings. She concluded with the observation that:
Children can sometimes surprise one.96
It may be a simple and short sentence but it is deeply embedded with a challenge to the traditional
paradigms that have marked the construction of childhood by courts. No longer are adults to be the
sole repository of wisdom and insight when it comes to the determination of a child’s best interests.
On the contrary children’s voices must play an active role in this assessment. Indeed, Baroness
Hale’s commitment to hear and listen to children’s voices provides the perfect bookend to Justice
Sach’s commitment to see and consider the rights of children in matters where once they were
invisible and ignored. Together, these sentiments underlie a new way of thinking for courts in which
children, when conceived of as rights holders, are both seen and heard. This new way of thinking
will prove challenging to some members of courts who are unable or unwilling to disenthrall
themselves from a construction of childhood that is wedded to the proprietary or welfare model. But
there is every indication that with the emergence and continued expansion of the idea of children’s
93 See General Comment No 5, above n 27, [53]. Chief Justice Nicholson also confirmed the impact of education in exposing judges to new ‘vistas’ on
various issues and allowing judges to recognize their own innate prejudices. He lamented, however, that judicial education about children’s issues in the
Australian context has been ‘rudimentary’: email from Chief Justice Alastair Nicholson to John Tobin, 16 February 2009.
94 Sloth-Nielsen and Mezmur, above n 92, 27.
95 See ibid (concluding, with respect to the increasing visibility of children’s rights in the decisions of South African courts, that ‘substantial credit must go to
public interest litigators . . . for bringing children’s interests to the fore in judicial proceedings’); Guggenheim, above n 20, 8 (observing that the most
important legacy of the decision of the US Supreme Court in Re Gault, which was inspired by the submissions of lawyers, was ‘the elevation of the
prominence of lawyers in leading the modern children’s rights movement’).
96 Tanzania [2011] 2 WLR 148, 163 [37].
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rights within social and political discourse,97 this development will both inspire and be inspired by
those courts which are prepared to listen to and see children in ways that have previously been
overlooked.
Pre-requisite assignment
After reading these materials please complete the pre-requisite assignment and forward it to
panels@vla.vic.gov.au by 5pm Friday 24 October.
Enquiries:
Andrew Morse, Panels Coordinator, VLA
e: panels@vla.vic.gov.au
t: (03) 9269 0644
97 See generally: Anna Holzscheiter, Children’s Rights in International Politics: The Transformative Power of Discourse (Macmillan USA, 2010; John Wall,
Ethics in Light of Childhood (Georgetown University Press, Washington DC, 2010).
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