UNDERSTANDING CHILDREN'S RIGHTS: THEORY AND PRACTICE

• Published date: 01 July 2006
• DOI: http://doi.org/10.1111/j.1744-1617.2006.00093.x
• Date: 01 July 2006

FAMILY COURT REVIEW, Vol. 44 No. 3, July 2006 350–360

© 2006 Association of Family and Conciliation Courts

Blackwell Publishing, Ltd.Oxford, UKFCREFamily Court Review1531-2445© 2006 Association of Family and Conciliation CourtsApril 2006443Original Article

Hale / UNDERSTANDING CHILDREN’S RIGHTS: THEORY AND PRACTICEFAMILY COURT REVIEW

FOURTH WORLD CONGRESS ON FAMILY LAW AND

CHILDREN’S RIGHTS

UNDERSTANDING CHILDREN’S RIGHTS: THEORY AND

PRACTICE

Brenda Hale

This article discusses the meaning of children’s rights in the context of the European Convention on Human

Rights and the UN Convention on the Rights of the Child. Both place primary responsibility for the upbringing

and education of children on their parents and families. The freedom of parents to bring up their children in their

own way is an important component of a liberal democracy founded on respect for individual differences. So if

parents believe in moderate corporal punishment as a means of educating their children in their own religious

beliefs, is the state justif‌ied in banning such punishment either in school or in the home in order to protect the

children’s rights? This article discusses the children’s rights which are protected by doing so.

Keywords:

children’s rights

;

parents’ religion

;

corporal punishment

;

European Convention on Human Rights

;

UN Convention on the Rights of the Child

The preamble to the Universal Declaration of Human Rights proudly begins, “Whereas

recognition of the inherent dignity and of the equal and inalienable rights of all members

of the human family is the foundation of freedom, justice and peace in the world . . .” Article 1

starts even more emphatically, “All human beings are born free and equal in dignity and rights.”

But then it introduces a problem for proponents of children’s rights: “They are endowed

with reason and conscience and should act towards one another in a spirit of brotherhood.”

Babies too have reason and the capacity for conscience but they have not yet learned to

use them, still less to act toward one another in a spirit of brotherhood. Learning to do

these things is an important part of growing up. So what does this mean for the idea of chil-

dren’s rights? Philosophers are interested in children’s rights because they raise interesting

questions about the whole concept of rights. Can you have rights at all if you are too young

to exercise choice, when others have to enforce your rights for you, when the obligations

upon which your most essential rights depend are often vague and ill-def‌ined, and when

you are too young to have reciprocal obligations of your own? But lawyers—and judges in

particular—are interested in children’s rights because they raise legal questions which may

require binding decisions in real cases.

The Universal Declaration also states in Article 25.2 (in the context of the right to a min-

imum standard of living and social security) that “motherhood and childhood are entitled

to special care and assistance.” But the Universal Declaration is not a binding instrument.

The special needs of children have been recognized in international instruments devoted

especially to them, most notably now in the United Nations Convention on the Rights of

the Child 1989 (CRC). The CRC is binding in international law, but it has not been made

part of the domestic law of the United Kingdom as many of its obligations are drawn in