Legal Constructions of ‘Children’ and ‘Childhood’

Understanding the Category of ‘The Child’

1. Why It Matters How We Think About Children:

• Children as Being vs. Becoming:

◦ Being: Children as individuals with rights and agency in their own right.

◦ Becoming: Children as persons in the process of development, which may justify different legal treatment and protections.

2. Importance of the Child:

• Uniquely Vulnerable:

◦ Children are often seen as more vulnerable due to their developmental stage, which influences legal protections and rights.

3. Children’s Agency and Participation:

• Children as Social Actors:

◦ Recognises children as having their own agency and ability to participate in decisions affecting them, emphasising their active role in their lives.

Models of Child Law

1. Paternal Authority Model:

• Concept:

◦ Focuses on the father’s absolute right to make decisions for his children, reflecting traditional patriarchal values.

• Symington v Symington (1870-75):

◦ Custody was granted to the mother, challenging paternal authority.

◦ Lord O’Hagan emphasised the father’s high and sacred right, lost only in cases of gross misconduct or harm.

2. Welfare-Based Model:

• Concept:

◦ Emphasises the child’s best interests, acknowledging their vulnerability and lack of agency.

• Children Act 1989:

◦ Section 1(1): The child’s welfare is the court’s paramount consideration in decisions about upbringing and property.

◦ Section 1(3): Welfare checklist includes the child’s wishes, needs, age, background, harm, and parents' capabilities.

• Re McGrath (1893):

◦ “Welfare” is interpreted broadly, not defined precisely in legislation.

• Re G (2012):

◦ Munby LJ interpreted “welfare” as encompassing the child’s development into adulthood, emphasising a judicial role akin to a reasonable parent.

3. Rights-Based Model:

• Gillick Competence:

◦ Gillick v West Norfolk and Wisbech Area Health Authority (1986):

▪ Established that children under 16 can consent to medical treatment if they have sufficient maturity and understanding.

▪ Shifted focus from parental control to the child's best interests.

• Lord Fraser:

◦ Parental rights are for the benefit of the child, not the parent.

• Lord Templeman (dissenting):

◦ Questioned the maturity of children to make informed decisions, concerned about the leap from childhood to adulthood.

Theoretical Perspectives

1. Jonathan Herring’s Challenges to Vulnerability Discourse:

• Projection of Adulthood:

◦ Argues that portraying children as especially vulnerable may mask adult vulnerability.

• Vulnerability as Interdependence:

◦ Emphasises that vulnerability should be recognised as a shared human condition, not just a child-specific issue.

2. John Tobin’s Analysis:

• Children as Independent Rights-Holders:

◦ Advocates for viewing children as independent subjects with rights rather than mere objects of protection.

• Selective and Rhetorical-Based Approaches:

◦ Courts may selectively apply children's rights, sometimes using rhetoric to mask a welfarist approach.

3. Helen Stalford and Kathryn Hollingsworth:

• Child-Centred Judgements:

◦ Advocates for judgments written with children’s needs in mind, emphasizing clarity, care, and empathy.

• Principles for Drafting Judgements:

◦ Clarity: Use appropriate language for children.

◦ Caring: Show empathy without compromising legal integrity.

◦ Informed: Ensure legal decisions are well-informed and reflect the child's perspective.

4. Joanna Harwood’s Presumptions:

• Statutory Presumptions:

◦ Critiques presumptions that children “need” contact with parents, arguing that these can reinforce unsafe contact arrangements and ignore individual differences.

Conclusion

The legal constructions of children and childhood reflect evolving views on their status and rights. From traditional paternal authority to welfare-based and rights-based models, the legal framework has shifted to recognise children as individuals with agency and rights. Despite this, challenges remain in balancing protection, participation, and autonomy, as well as addressing the complexities of post-separation violence and contact arrangements.