Children's Socio-Economic Rights, Democracy And The Courts

Aoife Nolan

• Publisher: Hart Publishing
• Year: 2011
• ISBN:
  9781847318589
• Edition: 1
• Topic: Jura
• Subtopic: Familienrecht

This book is concerned with children's economic and social rights (sometimes referred to simply as children's social rights). Despite increased academic interest in both children's rights and socio-economic rights over the last two decades, children's social and economic rights remain a comparatively neglected area. This is particularly true with regard to the role of the courts in the enforcement of such social rights. Aoife Nolan's book remedies this omission, focussing on the circumstances in which the courts can and should give effect to the social and economic rights of children. The arguments put forward are located within the context of, and develop, long-standing debates in constitutional law, democratic theory and human rights. The claims made by the author are supported and illustrated by concrete examples of judicial enforcement of children's social and economic rights from a variety of jurisdictions. The work is thus rooted in both theory and practice. The author brings together and addresses a wide range of issues that have never previously been considered together in book form. These include children's socio-economic rights; children as citizens and their position in relation to democratic decision-making processes; the implications of children and their rights for democratic and constitutional theory; the role of the courts in ensuring the enforcement of children's rights; and the debates surrounding the litigation and adjudication of social and economic rights. This book thus represents a major original contribution to the existing scholarship in a range of areas including human (and specifically social) rights, legal and political theory and constitutional law.
'Children's rights were often thought to be synonymous with economic and social welfare prior to the adoption of the Convention on the Rights of the Child in 1989. Ironically, since that time, remarkably little scholarship has been devoted to the vitally important economic and social rights dimensions of children's rights. Nolan's book singlehandedly remedies that neglect and does so in a sophisticated, nuanced and balanced way. It provides a superb account of the pros and cons of judicial activism in promoting these rights.'
Philip Alston, John Norton Pomeroy Professor, NYU Law School 'Thus far the burgeoning literature on the judicial enforcement of socio-economic rights has failed to engage in a sustained, systemic manner with this topic from the perspective of children and the complexity of their status as citizens within contemporary democracies. This book fills this gap and makes a major contribution to the literature in the three interrelated areas of the judicial review of socio-economic rights claims, children's rights, and democratic theory. Nolan navigates skilfully through the dense, but rich literature in these areas as well as relevant international and comparative law. In so doing she illuminates both the pitfalls and potential of resorting to courts in a partial response to the multifaceted and deeply entrenched global phenomenon of child poverty.'
Professor Sandra Liebenberg, HF Oppenheimer Professor of Human Rights Law, University of Stellenbosch Law Faculty.
Winner of the Kevin Boyle Book Prize 2012, awarded by the Irish Association of Law Teachers to a book that is deemed to have made an outstanding contribution to the understanding of law.

1

Children and Socio-economic Rights

INTRODUCTION

THIS CHAPTER SETS the scene for the investigation carried out in the book, explaining who and what I am talking about. It centres on the question of why it is necessary to look at children and their socio-economic rights. It also considers when and how the courts may be called upon to enforce such rights.

Having opened with a discussion of definitions employed throughout the book, I proceed to address the key issues that arise in relation to the conceptualisation of children as socio-economic rights-bearers. This entails a consideration of the implications of various constructions of children and childhood for societal, political and legal perceptions and treatment of children. Next, I outline the particular position occupied by children with regard to socio-economic rights violations and consider whether children qualify as a ‘special case’ vis-à-vis such rights when compared to other social groups. This is followed by a discussion of the definition and the alleged characteristics of socio-economic rights with a view to rebutting objections to such rights being subject to judicial enforcement. I also highlight the role, and justify references to, international law in the book’s argumentation. Finally, the chapter introduces the book’s discussion of the role of the courts by outlining the situations in which the courts might intervene and what action they might take.

OF DEFINITIONS AND OTHER THINGS

The first, necessary, step is to define the subjects of this work: that is, children. The meanings of ‘child’ and ‘childhood’ vary greatly between different societies, in the same society over time, or even within one society at the same time.¹ In contemporary societies, a child may qualify as an adult for religious, cultural or certain civil law purposes while still being a child for others: a Catholic child in Poland who has undergone confirmation is regarded as an adult within a religious context, while remaining a child for civil law purposes. Similarly, an African boy in Southern Africa who has undergone initiation ceremonies may be regarded as an adult by the community in which he lives while lacking the independent legal capacity generally associated with such status. In recent years, there has been a move away from the employment of a purely developmental model of childhood, most famously associated with Piaget, towards a model that views definitions of children, as well as the varied childhoods which children experience, as predominantly social constructs shaped by a range of social, historical and cultural factors.² This move from a developmental to a socio-biological framework of childhood has been particularly notable amongst commentators working in the field of the sociology of the child. A retreat from a view of child development as the unilinear, natural, inevitable and universal progression of children from ‘simple’ childhood to ‘complex’ adulthood potentially has major implications for the approach of the law to children and their rights. This is particularly so when it comes to recognising and giving effect to children’s capacity for decision-making in different contexts. Certainly, it poses complications for legal efforts to create distinct categories of ‘children’ and ‘non-children’.

As Van Bueren notes, there are two points of contention in the definition of a ‘child’: the beginning and the end of childhood.³ The first challenge is to address the question of when childhood begins. When defining the word ‘child’ for the purposes of the UN Convention on the Rights of the Child (CRC), the negotiating states parties differed sharply on the starting point of childhood.⁴ As a result of this dissensus, there is no mention of a ‘minimum’ age in the CRC. The sole brief reference to the position of the unborn child in the CRC occurs in the Preamble, which quotes a section of the non-binding 1959 Declaration of the Rights of the Child recognising that the child ‘by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’.⁵ This ‘silence’ of the CRC reflects the absence of a universally agreed-upon age when childhood begins.

Nor does regional human rights law appear to provide a clear, consistent definition of when the protection of childhood begins, albeit that the relevant treaty and case law on this issue indicates a predominant view that ‘childhood’ is protected from birth, rather than beforehand. Alone amongst international and regional human rights law instruments, Article 4(1) of the American Convention on Human Rights (ACHR, 1969), provides explicitly that the right to life ‘shall be protected by and, in general, from the moment of conception’. There has not, however, been Inter-American case law involving the rights of the unborn and neither of the Inter-American Court of Human Rights’ two key statements on the definition of the child has made reference to the unborn, referring instead to the language of Article 1 CRC.⁶ The European Court of Human Rights has held that, in the absence of a European consensus on the scientific and legal definition of the beginning of life, the question of when the right to life under Article 2 of the European Convention on Human Rights (ECHR) begins comes within states’ margin of appreciation.⁷ In the circumstances examined to date by the ECHR institutions (that is, in the various laws on abortion that have been raised in complaints before them), the unborn child has not been regarded as a ‘person’ directly protected by Article 2. The issue of the right to life of the unborn has not been addressed by the European Committee of Social Rights, which does not monitor an instrument that explicitly enshrines the right to life. However, given that body’s extensive reliance on the jurisprudence of the European Court of Human Rights (ECtHR) in areas of overlap between the instruments,⁸ should a question of the rights of the unborn come before it, it would not be unreasonable to assume that it would adopt a similar approach to that of the ECtHR. The EU Charter of Fundamental Rights does not define ‘child’ but the child-specific provision of that instrument, Article 24, is based on the CRC.⁹ Thus, it can be assumed to employ the CRC understanding of ‘child’. In turn, the African Charter on the Rights and Welfare of the Child, the key African children’s rights instrument, follows the CRC’s lead in failing to specify the beginning of childhood.¹⁰

In light of the preponderant approach of international and regional human rights law, as well as the wide diversity of approaches at the domestic level, this work takes childhood to begin at the time of birth. That is not to ignore the fact that in some jurisdictions, the constitutional framework accords the right to life to unborn children.¹¹ The right to life may be, and in some jurisdictions has been, interpreted to have clear socio-economic aspects and implications, albeit not in the context of the unborn.¹² However, the arguments in this book are restricted in their application to born children so as to avoid the complications inherent in dealing with the rights of the unborn, including potential conflicts between the rights of the mother and the judicial enforcement of the socio-economic rights of the unborn child.

I will now turn to the ‘end’ of childhood. In international law terms, Article 1 of the CRC provides two tests for childhood. First, it states that a child is any person under the age of 18. Secondly, it provides that under national law applying to the child, majority can be attained earlier.¹³ Of the regional instruments, only the African Charter on the Rights and Welfare of the Child prescribes one set age as the ‘end’ of childhood: 18.¹⁴ As stated earlier, the Inter-American Court of Human Rights (IACtHR) has primarily relied on the wording of Article 1 CRC in defining childhood. However, the Court has been prepared in at least one case to recognise that, where the national age of majority is higher than 18, then a child under that age qualifies as a child for the purposes of Article 19, even if she is over 18.¹⁵ In terms of the ECHR, Kilkelly has noted that once a child falls within the definition of a minor or juvenile for the purposes of the relevant domestic law, then this will not be an issue when the matter is reviewed by the ECtHR, unless the age limit is arbitrarily or illegally applied.¹⁶ Thus, while international law favours the age of 18 as being the ‘cut-off’ for the purposes of childhood, it explicitly recognises that there can be, and are, significant variations in the practice of signatory states.

The law has a tendency to think in terms of binary classifications. Consequently, the workability (in terms of clarity and administrative efficiency) of an age-based definition of ‘child’ in a legal context is taken to outbalance the arbitrariness of such a definition; a fact that is based on the perceived ‘costs’ and subjectivity associated with alternative processes entailing individual determinations of maturity, as well as concerns about the measurement of persons against a particular norm of the ‘able bodied prime age adult’, such as ‘capability’ or ‘merit’ in order to determine the treatment of those persons.¹⁷ The ‘arbitrariness’ in question arises from the fact that an individual may not conform with the presumptions about competence, maturity, autonomy, knowledge, levels of education, participatory capabilities, etc, upon which such an age-based definition is based.

Many of the arguments presented in this work are concerned with the inability of children to exert effective influence on political decision-making processes and the appropriate role to be adopted by the judiciary in relation to their rights and interests in light of this. The key reason for children’s incapacity to exercise influence on democratic processes is their unenfranchisement. Therefore, I define a ‘child’ as any person who has not yet reached adulthood in terms of being of an age to participate in democratic decision-making processes by exercising their right to vote. Upon reaching voting age, a person may be regarded as an adult, capable of exercising influence on the legislative and executive organs directly, as opposed to being dependent on others to ensure the enforcement and protection of his or her rights within the democratic system.

The undoubtedly somewhat arbitrary fixing of the minimum voting age is demonstrated by the variety in ages of enfranchisement in different jurisdictions,¹⁸ as well as the existence of varying ages of enfranchisement for different elections within individual jurisdictions. Furthermore, the age of enfranchisement will not necessarily correspond to the age at which children ‘achieve’ adulthood in terms of reaching full legal capacity or other aspects of adult status; nor will it necessarily match the age at which children may exercise functions and jobs that are traditionally associated with adulthood, such as driving or working. For instance, in the Republic of Ireland, a person of 17 can serve in the army but will not be treated as an adult in terms of having reached full legal majority, enfranchisement and constitutional rights purposes.¹⁹ Certainly, the difference between the de facto and the de jure competence of an individual may not be perfectly reflected in the age chosen by the legislature (or specified in the constitution) as the voting age. The same is undoubtedly true of any ‘age-based’ classification due to the vast differences in development and maturity between individuals.

The linkage of the end of ‘childhood’ to enfranchisement becomes particularly complicated when applied to jurisdictions where children become enfranchised for different elections at different ages. For instance, in various Lander in Germany, the voting age in local elections is 16 rather than 18. On the other hand, in Italy, an individual cannot vote in elections for the Senate until the age of 25. The question arises whether children become adult when they are enfranchised for any or for all public elections. The simplest answer seems to be ‘any’ as this is the age at which children are able to exert some influence on democratic decision-making processes. However, it must be borne in mind that where a person is enfranchised for some elections and not for others they may not participate on equal terms with other ‘fully enfranchised’ members of society and some of the arguments made in this work may apply to them to varying degrees (as, indeed, they may to any politically disadvantaged or excluded minority).

Problematically, in some of the countries discussed in this work, the age of enfranchisement does not coincide with the definition of a child for the purposes of constitutional rights. For instance, a number of provisions of the Indian Constitution accord rights to ‘children’ but these child-specific rights appear to be reserved to persons under the age of 14.²⁰ The age of enfranchisement is 18 while the definition of a ‘child’ or ‘minor’ for other purposes varies depending on the context.²¹ Where children cannot vote and are excluded from the rights accorded to ‘children’ in terms of the constitution, they are in a particularly vulnerable position as they have neither the ability to exert direct influence on democratic decision-making, nor can they rely on the ‘special rights and protections’ associated with childhood.

This book does not sub-divide the class of ‘children’ into other categories (such as ‘infant’, ‘teenager’, ‘juvenile’, ‘adolescent’ and ‘youth’) although these terms are employed descriptively. The vagueness and lack of consistency in the usage of these terms, as well as the fact that arguments based on children’s exclusion from democracy apply to all children below the age of enfranchisement, lead me to avoid dividing children up into further age-based groupings. Although my arguments may apply varyingly to different groups of children, this is not always simply attributable to age. For instance, groups of children may occupy quite different positions in relation to exerting pressure on democratic decision-making processes depending on factors such as their socio-economic class, level of education and the degree of political participation or views of their parents.

THE EMERGENCE AND REFRAMING OF CHILDREN AS SOCIO-ECONOMIC RIGHTS-HOLDERS

Having defined who we are talking about, it is time to make it clear why it is necessary to talk about them. It is crucial that more attention be paid to children as socio-economic rights-bearers, independent of the society or family unit of which they may form part. Children are now formally recognised as a minority rights group through the provision of their own UN Convention, and share many experiences of oppression with other minority groups in society.²² They wield no significant political, legal or (strategic) economic power and are generally utterly excluded from the vast majority of important societal institutions (elected bodies, banks, trade unions, etc) whether political, financial or labour-related.²³ Moreover, they are excluded from those decision-, policy- or law-making bodies which are of the greatest importance to them, such as school boards, government committees on education, juvenile justice and child health services. Traditionally, when societies have considered children as a discrete group, it has generally been in order to dismiss them as irra...

Table of contents

• Cover
• Title
• Copyright
• Series Editor’s Preface
• Acknowledgements
• Contents
• List of Abbreviations
• Table of Cases
• Table of Legislation
• Introduction
• 1. Children and Socio-economic Rights
• 2. Children and Democracy
• 3. Exploring the ‘Counter-Majoritarian Objection’
• 4. A Question of Balance? The Separation of Powers, Constitutional Supremacy and Children’s Socio-economic Rights
• 5. The Issue of Efficacy
• 6. Using the Courts to Advance Children’s Socio-economic Rights: Proceed with Caution?
• 7. Conclusions
• Select Bibliograpy
• Index