First, you suggest that the philosophy of the Children Act 1989 extended children's rights. Although the Act emerged in the context of the development of a new philosophy of children's rights by the judiciary, it did little to develop that philosophy. Parliament expressly rejected two measures that would have enhanced children's rights. It refused to give any special weight to the wishes of children and it refused to provide better protection for them against assault by their parents. Further, the courts have now retreated from those elements of the Gillick decision that went beyond welfare rights to recognise children's rights to autonomy. English law is less committed to children's rights in 1996 than it was in 1986 after the Gillick case.
The second fallacy is that children are "half-formed individuals". All parents know that their children are individuals at least from the moment they are born. They may be changing, but so are all adults. Children are already human beings and are entitled to human rights.
Third, you find it relevant that most parents think they know the difference between a blow that "hurts a child's pride and a blow that leaves a bruise". The case that is going to the European Court demonstrates the complacency of that attitude. The blows that the jury found reasonable did not stop at bruising, they were so severe that they resulted in hospital treatment. Yet our law regarded this as acceptable.
Taken together, these misconceptions enable you to argue that we are engaging in a gradual "civilising process", as if we need only wait for our society to see the light. The reality is that our society is not moving step by step towards greater recognition of children's rights. It is ambivalent and will not move unless nudged. That is why we must hope that the European Court of Human Rights stands up for children.
Senior Lecturer in Law
Highfield, SouthamptonReuse content