Capacity, claims and children's rights

Abstract

Children are often denied rights on the basis of their incompetence.A theory of rights for children is essential for consideration of the child's political status, yet the debate surrounding children's rights has been characterised by the divisive concept of 'capacity' typified in the two leading rights theory, Interest Theory and Will Theory. This article will provide a thorough analysis of the relationship between capacity, competence and rights. Although Interest Theory has successfully dealt with the competence requirement for being a right-holder, the competence requirement still holds for the type of rights a child holds. Children's interests are determined sufficiently strong to found a right when the claim-holder has the competence to realise the benefit to which that interest pertains. This allows us to recognise children as right-holders while constraining the types of rights they hold according to their developing competencies.

Voting at 16 – Lessons for the Future from the Scottish Referendum

“…Grover (2011) states that suffrage is a universal human right and so should not be denied children on the grounds of age or incompetence. Similarly Cowden (2010) supports the view that a child's entitlement to vote does not depend on full awareness of the issues: it is sufficient to understand what an election is about and be able to complain about not being allowed to participate. The children's rights and participation literature also emphasises that children and young people under the age of 18 (the usual limit recognised under the UNCRC) are entitled to participate in public decision-making that affects them.…”

“…Cowden (2010) suggests that claims about different types of right need to be judged separately, but certain of young people's welfare and protective rights may be questioned if they are seen as competent to make adult decisions and engage in the adult political world, as Archard (2007) has suggested in the context of youth justice. If young people aged 16+ are deemed mature enough to vote, they may be expected to take full responsibility for their behaviour, including criminal acts.…”

“…The latter contention implies that young people could be adequately prepared if citizenship education was more extensive and effective. They have the capacity or potential ability required to vote but not yet the actual competence (Cowden 2010).…”

The Nature of Parental Autonomy and Justification of Its Limitation in Case of Immediate Medical Intervention

“…[7] Therefore, the parent-child relationship can be observed as a relationship where the law entrusted the parents with powers to make the decisions for the benefit of the child as the child at varying points of his development does not have the factual competencies required to hold a power to enforce the claims regarding the enforcement of his rights. [8], [9], [10] Instead, the temporarily powerless child can enforce his claims only if someone else will enforce it on his behalf. [8] It means that the power to enforce or waive claims lies outside the child as the claim-holder, with the state, a designated institution or an individual.…”

“…[8], [9], [10] Instead, the temporarily powerless child can enforce his claims only if someone else will enforce it on his behalf. [8] It means that the power to enforce or waive claims lies outside the child as the claim-holder, with the state, a designated institution or an individual. [8] The separation between claim and power logically allows that a child lacking the competency to hold power is not excluded from holding a right that aims to protect his interests.…”