A theoretical approach to children's rights

Abstract

Is there any valid place left for talking about a theory of children's rights? Has it not all been said over and over? No one today seriously contends the universal recognition of the legal status of children as subjects of rights. In the decades leading up to the United Nations Convention on Children's Rights (CRC) we witnessed a sustained academic discourse on the subject that was entangled in a debate about how far we are entitled to 'protect' children and to what extent do they have the right to 'empowerment'. However, a restatement of what we mean when we say that children are entitled to the full range of civil and socio-economic rights will help us to assess where we have arrived. Have we really understood our commitment to children's rights? Are we clear about what this commitment implies? Are we seriously monitoring the application of these rights? In brief, are we taking a theory of children's rights seriously? Talk about justice is today often framed in the language of rights that are the commonly accepted standard measure of political justice. The most important international recognition of the rights of the child is the UN Convention on the Rights of the Child. The CRC embodies a set of principles that constitute guidelines which State parties are obliged to follow in drafting their legislative enactments and which they are then to implement in their executive policies. The implications of this Convention and subsequent enactments are undergoing a continual process of clarification and evaluation. In other words I can see why Freeman says that although the CRC is an achievement "it is a beginning, no more." I agree that we must now go beyond Conventions towards empowerment. We must indeed re-examine structures, institutions and practices to make children's rights more meaningful. As Freeman comments, in referring to the U.K. Children's Act, legislation in the field usually recognises both sides of the children's rights equation: welfare versus self-determination. But, I ask with Freeman, is there a serious commitment to either? Can it be said that the best interest of the child is respected independently of the overriding economic interests? Malta is at present in an interesting stage of transition. For the past few years we have been aware of the drafting of a Children Act that draws heavily on the UK's Children Act and of the drafting of the Child Ombudsman Act. A White Paper on the proposed Family Division Civil Court is currently being debated. Malta is a signatory of the CRC and has presented the first mandatory report regarding the local situation to the CRC's monitoring Committee. After various meetings with local representatives, the Committee has recently presented us with its concluding remarks and recommendations. The ratification of the Convention signifies our commitment to the ideal of children's rights. The proposed Children Act, Child Ombudsman Act and Family Division - Civil Court is the way we propose to translate this ideal into law. What we need is a sound theoretical framework as a tool to interpret these rights and to apply the principles enshrined in the Convention. In Malta we have just started to dimly see the beginning of a debate on children's rights. It is long overdue. It is my intention to contribute to this debate. My dissertation is divided into three parts. Part One outlines a plausible theory of rights. Part Two, by far the main part of this dissertation, consists of an attempt to show what we mean when we speak of children's rights and outlines the theory of children's rights that I propose. Part Three indicates elements of the present position in Malta and suggests some of the measures we can take to ensure a serious commitment to children's rights.