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Required Reading for Every Youth Rights Activist

Written by Alex Koroknay-Palicz Jan 22, 2006

As far as modern day youth rights gospels go, you can’t get much better than Bob Franklin’s introduction to the “Handbook of Children’s Rights” I’ve seen no better succinct and cogent explanation of the assumptions that drive our work, the key logical arguments that support our work, and a complete undressing of those who disagree. Pound for pound its definitely one of the top 18 pages yet written on youth rights. I present to you 5.

Note also that Franklin’s use of the term “children” is a departure from the distinction NYRA typically makes between “children” and “youth”. So for the purposes of this excerpt, just think “youth” so you don’t read this with images of toddlers in your mind. He also uses “libertarian” only in a social context, so it’d be more like “civil libertarian”, as economics don’t seem to factor into his use of the term at all.

Anyways, this excerpt is outstanding, enjoy:

Children in all societies are denied the right to make decisions about their affairs which as adults we take for granted. This denial of rights occurs both in the public realm of children’s involvement in education and the care arrangements of the state and the private realm of the family. Children’s lack of decision-making rights includes relatively unimportant matters such as decisions about which clothes to wear or what time to go to bed, to more significant concerns about the right to help structure the educational curriculum at school and the right to vote. But any society wishing to deny children, or any other group, rights which are common property of other groups, should be able to offer clear and sustainable reasons for doing so. The burden of proof always rests with those who wish to exclude others from participation; children should not be obliged to argue their case for possessing the same rights as everyone else.

The argument for denying participation rights to children has two interrelated strands. First, it is alleged that children are not rational or capable of making reasoned and informed decisions. Rights to autonomy in decision-making grow with maturity. Locke stated the matter unequivocally. ‘We are born free as we are born rational he claimed, ‘not that we have actually the exercise of either; age that brings one brings with it the other too’

Second, children lack the wisdom born of experience and consequently they are prone to make mistakes. By denying them the right to participate and make decisions for themselves, society is attempting nothing more heinous than protecting children from their own incompetence. These two strands were cogently interwoven into a classic statement and defense of paternalism by the Master of the Rolles in Re S [1993], where he claimed ‘…a child is, after all, a child.’:

The reason why the law is particularly solicitous in protecting the interests of children is because they are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter, lacking the insight to know how they will react and the imagination to know how others will react in certain situations, lacking the experience to measure the probable against the possible.

Both objections to children’s rights claims can be met either positively or negatively; i.e., by asserting that children do possess the qualities which critics allege that they do not, or by conceding that if children do lack the skills and qualities necessary for participating in decision-making, they lack them in no greater degree than adults who are not, on this ground, disqualified from participation. Libertarians offer a number of arguments.

First, children do reveal a competence for rational thought and do make informed choices — from decisions about which television programmes to watch or which football teams to support, to more important issues such as developing strategies for dealing with a bully at school or an abusing parent at home. Children who have been sexually abused have to make a very complex assessment of the consequences for their family of disclosing that abuse. In these circumstances children display remarkably sophisticated skills in decision-making and evaluating outcomes.

Second, the argument which suggests that children are likely to make mistaken choices, because they lack experience of decision-making, rests on tautology and a confusion. The tautology is evident. If children are not allowed to make decisions because they have no experience of decision-making, how do they ever get started? This is catch 22. ‘Even children, after a certain point, had better not be “treated as children”‘, Feinberg remarks, ‘else they will never acquire the outlook and capability of responsible adults’. There is, moreover, nothing wrong with making mistakes; we all do it. Mistakes are not necessarily negative, but can provide positive opportunities to learn from our experiences. Why not allow children, like adults, the possibility to learn from their mistakes and grow in knowledge and experience as a consequence?

The confusion in the argument is also clear. It does not follow that children should not make decisions simply because they might make the wrong ones. It is important not to confuse the right to do something with doing the right thing. As Dworkin argues, we often accept that adults have the right to do something which is wrong for them. Smoking offers an obvious example.

But even if it was conceded that children are not competent decision-makers, it could still be argued that they lack these competencies in no greater degree than adults. Since adults are not excluded from participation in decision-making on this ground, the exclusion of children represents a case of double standards. History offers convincing illustrations of the inadequacy of adult decision-making; it is little more than a catalogue of blunders. War, inequality, famine, racism and injustice are some of the fruits of adult deliberation and choice. It is hard to imagine a worse track record. To deny children the right to make mistakes would deprive them of a right which adults have exercised extensively. It would be hypocritical.

But if paternalists wish to insist that the possession of certain competencies is the criterion for participation, then it is a criterion which argues for the exclusion of adults as well as children. Presumably the paternalist intention is not to exclude children from decision-making merely because they are children, since this is not an argument but simply another tautology. Their argument about age-related rights regresses eventually to a debate concerning competence and, on this reasoning, it is not children who should be denied rights but all incompetent people — without regard to their age. Argued consistently, the paternalist position risks excluding adults as well as children and leads to unacceptably elitist conclusions. It is predictable that the exclusion of children has rarely raised the issue of elitism. There are other problems. Who, for example, would decide who is competent to participate? University professors? Educational psychologists? Political parties, local magistrates or Plato’s philosophers? Nor do the difficulties end here. What might serve as criteria of competence and how might we test to establish them?

Finally, the denial of participation rights to children is unfair because children can do nothing to change or ameliorate the conditions which exclude them. If the grounds for exclusion were ignorance or lack of education, then the ignorant might endeavour to become wise and uneducated people might be motivated to read and learn. But young people cannot prematurely grow to the age of majority even if foolish enough to entertain such an ambition. Nor is the allegation of inequity met by the suggestion that the denial is temporary since children eventually become adults and acquire the appropriate status and rights. The argument here rests on a confusion between particular children and children as a social group. An individual child matures to adulthood, but this does not alter the status of children as a social group; the 13 million people in the UK who are denied the right to participate in making decisions about important matters in their lives.

In summary, the argument for denying participation rights to children on the grounds that they are not rational and lack experience has been strongly contested by libertarians. Under pressure, those opposed to children’s rights have offered three additional arguments.

First, it is argued that children should not possess participation rights because they are incapable of what the German philosopher Kant called ‘self maintenance’; what might now be described as self sufficiency. Kant believed that, ‘the children of the house…attain majority and become masters of themselves…by their actually attaining to the capability of self maintenance’. But the criterion of self maintenance fails to distinguish adults from children; it merely distinguishes between those who are capable of self maintenance and those who are not. It might, however, be used to justify excluding disabled people, sick and older people, as well as people who are unemployed, from participating in decision-making. Each of these groups could be judged to be incapable of self maintenance. But it is surely a dubious moral claim to suggest that anyone who lacks self sufficiency should be subject to the intervention of others in their affairs and denied autonomy rights?

A second argument suggests that the advocacy of children’s rights is anti-pathetic to adult rights and diminishes adults’ ‘genuine’ rights claims; children’s rights are bogus — a Trojan horse. Children’s rights are demands for protection either by parents or by the state in the guise of ‘super parent’. But for adults, democratic rights are, above all else, the ‘right to independence from the state… Whenever the spurious notion of children’s rights is invoked we can be sure that an attack on the real freedoms of adults is not far behind’. But this argument is wrong-headed on two counts. First, children’s rights have never been reducible to claims for protection, but have always embraced claims for participation rights. Children want the same autonomy rights that adults enjoy. Second, the argument blames the victim. If children’s claims for rights were being used to undermine adult rights, the appropriate strategy would be to criticise the state which was seeking to reduce adult rights, rather than to attack children whose rights entitlements are already considerably less than those of adults.

A third argument is based on what might be termed ‘future oriented consent’ or what Archard calls the ‘caretaker argument’. The argument suggests that a parent (or some other rational adult) has a right to restrict a child’s freedom and to make decisions in a child’s best interest, on the understanding that the child must eventually come to acknowledge the correctness of the decision made on their behalf. A child, for example may not wish to attend school, but education is essential if that child is to develop into a rational and autonomous adult. A parent is therefore entitled to override the child’s current wishes to guarantee their future independence. It is precisely because the caretaker argument places such a high value on individual autonomy and critical rationality in decision-making that intervention in children’s affairs is judged permissible. As Archard notes with an evident sense of irony, ‘the caretaker thesis thinks self determination too important to be left to children’.

Dworkin suggests that these parental interventions constitute ‘a wager by the parent on the child’s subsequent recognition of the wisdom of restrictions. There is an emphasis on…what the child will come to welcome, rather than on what he does welcome’. This is no means a trick. As Archard points out, the caretaker must not only choose what the child would choose if competent to make the choice autonomously, but also have regard for the interests of the child in the person of the adult which the child is not yet but will eventually be’. There are two difficulties here. If the justifiability of the intervention depends on future consent, there is no way of judging at the time of the intervention whether it is appropriate. But the more serious objection is that the intervention by the adult might generate ‘self justifying’ rather than ‘future oriented’ consent. The consent of the child at some future date may simply be a product of the very process of intervention. The benchmark of successful brainwashing is that the person violated in this way is happy and confirmed in their new beliefs. If Freud was correct to suggest that the child is father to the man, then on this account the man may be substantially fashioned by the caretaker. The caretaker argument may amount to little more than a vicious circle of self justifying adult intervention in children’s lives.

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