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THE BEHAVIOR OF LAW  Nov 07, 2017

 

child as offended

Children in trouble   social work

“Doing Good / Doing Justice :  welfare laws

 Ideology of conscience and convenience; care and consent

 

Law as the normative calculus of rules

Law and ideologies

 

 

 

Our legal view and treatment of children is  concerned with the  degree of state intervention in child and family autonomy questions (Gaylin, 1982).

 

Nevertheless the question arises as to whether a children's rights-based approach to reform is either desirable or genuinely useful as a reform strategy.

 

 Alongside recent advances in the legal status of children as persons, there have been several  court decisions  which limit and curtail the 'rights' of children and express their subordination to adults (Minow, l986).

 

If they had clearly articulated legal rights, rather than being powerless in the face of neglect, abuse, molestation, ignorance, and hunger, they would have some redress and claim against others.

The importance of treating the status of children as a public concern, and not simply relegating it to the private sphere of individual families.

 

Rights and Justice: Background

A. The Rights of Parents

Parents’ rights are connected to the idea that there is a realm of autonomy in private decision making that is fundamental to individual freedom and is protected from intrusion.

 

 

Parents’ rights also have a place in constitutional law that predates the Charter.  

The constitutional status of parents’ rights has been reaffirmed in the Charter era.

In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, a majority of the Supreme Court held that parental rights were a liberty interest protected by section 7 of the Charter.

 Justice LaForest held that there was “a protected sphere of parental decision-making” included in the liberty interest protected by section 7 of the Charter.

 

B. The Rights of Children

The most important development in the recognition of children’s rights was the advent of the United Nations Convention on the Rights of the Child (UNCRC).

The UNCRC reflects the fact that children, who as a basic matter are entitled to the same human rights as all human beings, also have particular needs and circumstances that necessitate a different approach to the protection of their rights.

Recognition of their human rights requires that they, like adults, be protected from abuse and oppression.

In oversimplified terms, there have been two such models in the history of

rights theory.

   It is conceptually difficult to find a place for children’s rights in the liberal model.

 Any theory of children’s rights that reflects their real needs must recognize that they have a moral  and legal claim NOT merely to be let alone, but to the nurturing and support required for their healthy development.  

In 2003, Canada was asked by the UN Committee on the Rights of the Child to investigate evidence of discrimination in basic areas of child development, such as health and education.

 

What is a Right?    What is a Responsibility?

The Best Interests of The Child   (BIC)

United Nations International Children's Emergency Fund (UNICEF) was established on 11 December 1946 by the United Nations to meet the emergency needs of children in post-war Europe and China.

The rights set out in the Convention can be grouped into three broad categories:

1. Protection

2. Participation

3. Provision

The ideological conflict between those who see children's rights in welfare terms and those who wish to promote a child's self-determination is still present in the Convention.

 

The concept of “life chances”

But, Canada has done little more than pay lip service to the welfare of children.

 

Obligations

According to O'Neill (1988) there are good reasons to argue in favour of a vocabulary of obligations rather than one based on  custody and control.

 

What is apparent, moreover, is the degree to which parenting as a life-cycle project is the struggle towards making children independent.

  

This invokes a range of world-views and competing liberal positions of justice represented by Mill in the utilitarian camp and Kant in the rights-based camp along with a cast of modern protagonists including people like Rawls and Dworkin.

 

Competing with the liberal autonomy of rights-based positions for children is the principle that care and custody of children are essential to the interests of both children and adults.

 

Law and the Courts

  

From Melton's (1987) perspective, the biggest problem with using the courts is the real absence of best interest standards, and the "apparent randomness of judgments.

  

Melton (1987) neatly summarized these contradictory trends and describes our present predicament:

" we are currently confronted with unprecedented child self-determination, family privacy, state intervention to protect children (especially in regard to their health), and state intervention to disrupt families and constrain child autonomy! Each of the major schools of thought about children's rights seem to have identified issues in which it can pursue its agenda with little controversy. On the other hand, the ultimate incompatibility of such perspectives cannot be avoided." (p.86)

This gives rise to special protections

for children’s rights in law and public policy, justified limitations on their freedom,

and correlative obligations by adults to provide support and a conducive context

for the full development of children.

This concept is captured in the principle of

 

THE BEST INTERESTS OF THE CHILD,    (BIC)   

the best interests of the child shall be a primary consideration.” (Convention on the Rights of the Child,

 

Critical theory

 Law and Justice: distant relatives not on speaking terms

 

Canadian law abstracts and de-contextualizes individuals from their social relations by stressing the freedom and liberty of the individual in maximizing her/his  life-chances. 

 

Ericson clearly argues, “those who seek equality in social structure and social relations and, the justice this promises, should look more often to means other than the law” (1984:3).

 

Law as unresponsive to current societal concerns -- divorced from its larger social foundations.

 

Law is cultural medium in which social identities are formed and re-formed, a  privileged site that constructs,  protects and represents certain interests, a mechanism that legitimates the creation and mobilization of social groups.

 

  Charter of Rights and Freedoms

 

The Charter is embedded within numerous contexts-- social, political, economic and legal.

 

 Section 15(1) states:

Every individual is equal before and under the law and the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

Section 7 of the Charter consecrates three fundamental rights: the rights to life, liberty of the person and security of the person.

 

Rights are to be interpreted by the Courts

 

 

An emphasis on the legal "individual" is at best a partial remedy to the subordinate treatment of many.

 

Specifically, the premise of the Charter is that individual equality can be attained if individuals pursue legal channels.

 

Also, equality "before" the law does not provide equality "in" law.

 

Judiciary

The legal discourse on equality limits the scope for social change by justifying pre-existing distributions of opportunities (Friedenberg, 1971).

 

Turning to law alone is an admission of weakness.

 

Mythologies

Myths and their accompanying symbolic rituals and ceremo¬nies are designed to shape and solidify favorable impressions of control agencies and the state.

 

For example, all theorists of the Enlightenment, including Montesquieu, Voltaire, Hume, Jefferson, and the like, justified slavery on grounds of alleged scientific fact that slaves were sub-humans.  This “fact”, in turn, became a defense of black servitude.

 

As Zatz (1987:85) and Balbus (1973) discuss, the legal system serves to represent the interests of a few, to institutionalize bias and to reinforce inequalities.

 

ADVERSARIAL JUSTICE

(Mohr, l984:263) notes:

"The battle ground over legal definitions of children still continues with one sidwantinq to declare them independent and autonomous so that they, too, fairly fit into our legal conceptions of persons, but reality again resists. The little critters seem to want to be dependent, and so do the not-so-little ones (even when they resent it and their parents resent their resentment).

 

No subject  of legal scholarship has enjoyed greater influence during the last half century than that of adversarial justice

 

The crucial role that conflict plays in transforming sentiments and ideas of justice within matrices of governmentalities.

 

Evidence based reason within a competitive setting framed procedural rules that originated 800 years ago.

 

 

 

Key Elements of Adversarial Justice:

Equality

Impartiality

Transparency.

 

 

 

 

 

REMEDIES: REFORM THROUGH LAW?

 

ADVOCACY

We can try to improve the position of young persons through advocacy and litigation, but  it,  will be at our peril since we will be doing so through an adversarial process which, grounded in liberal tradition, will want to fix the adversaries as the private family and the child, and occasionally the state and family.

 

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Child Sexuality

 Germaine Greer on adolescent sex education:

"If sex is to be preached at them and if they are to be taught how to do it as they are taught how to dissect rabbits and compose nourishing meals, correct fucking becomes an extension of orthodoxy. Their sexuality is given up to the scrutiny of the elder generation and the excitement is lost. To be sure the secret discovery of sex with one's peers is a rocky road with many wrong turnings, but it is a thrilling road down which to venture by fits and starts, retreating to the safety of childhood and innocence with ones unknowing parents." (Greer, 1984:216)

 

 Establishing a Counter-Discourse

Care for adolescents, and adolescent sexual involvement cannot be reduced to matters of legal or medical judgment.  

 

The "doing good" model of disposition is based in social welfare ideology.

 

Children's aid societies

The five primary forms of maltreatment are physical abuse, sexual abuse, physical neglect, emotional maltreatment and exposure to domestic violence.

 

 

The Child and Family Services Act defines a child in need of protection as a child who is or who appears to be suffering from abuse and/or neglect.  

 

Currently in Ontario, the laws which protect children from abuse and neglect do not extend to children once they turn 16 years old.

Most social and legal constructs consider someone an adult when they turn 18.  

Youth who are 16 to 17 and feel unsafe in their family situations are not able to access protection services.