Some problems of the legal capacity of children and some solutions from the human rights approach

Ignacio Campoy Cervera“Bartolomé de las Casas” Human Rights Institute

Department of International and Ecclesiastical Law and Philosophy of Law

Carlos III University of MadridDublin, 29th April 2013

Introduction

The problem: Children as persons marginalized in our contemporary societies

The solution: construct and implement a system of recognition and protection for the rights of children, with or without disabilities, in keeping with the human rights model and International Human Rights Law

Introduction

Analyse the two models currently in force: “renewed” protectionism, with regard to children, and the social model of disability, with regard to disabled people

Present the main considerations which must be taken into account when developing a system for the recognition and protection of children’s rights which would be in keeping with the human rights model

“Renewed” protectionism and the social model of disability

According to “renewed” protectionism, the child will only gradually acquire sufficient experience and maturity of judgement to be able to determine what their real interests are and how to satisfy them appropriately

According to the social model, is needed act with regard to the impairments, but above all in regard to the social causes, in order to guarantee the full social inclusion of people with disabilities

“Renewed” protectionism and the social model of disability

According to both models, children, without, and above all with disabilities, are people basically characterized by a special helplessness and by some deficiencies which, firstly, mean they deserve special protection and, secondly, prevent them, in general, from taking decisions on their lives in the free exercise of their rights

“Renewed” protectionism and the social model of disability

The crucial importance of two fundamental principles: the protection of the child’s best interests and the child’s right to participate in all the questions affecting him or her

The actual interpretation of both principles is not compatible with the construction of a recognition and protection system for the rights of children which fits in with the human rights model, because don’t guarantee the effective exercise of their legal capacity under the same conditions as everyone else in society

The construction of a human rights model for children, with or without disabilities

The meaning of the term “the best interests” of the child – with or without disability- within human rights discourse must be “attain the free development of one’s own personality”

The participation of the child in the decision-making process for all those questions which affect him or her, means the free exercise of his or her rights, according to his or her will

The possible conflict between the two principles places us right in the arena of paternalism

The construction of a human rights model for children, with or without disabilities

Four important ideas for taking a justified paternalist measure:

1) apply the same justification criteria for any paternalistic measures regardless of the personal conditions

2) respect the will expressly manifested by the child except in justified cases

3) Always respect the “real” will of the child 4) the criteria of age and disability cannot be general

criteria for limiting the capacity to act

The construction of a human rights model for children, with or without disabilities

The application of these ideas would imply the construction of a system for the rights of children, with or without disabilities, in line with the human rights model, where the most important consideration is the child’s freedom, like that of any other person, and, consequently, their legal capacity to exercise their rights on an equal basis with everyone else

The construction of a human rights model for children, with or without disabilities

Two general considerations on this system for the exercise of rights by children, with or without disability:

1) any limitation to the exercise of their rights would have to be previously justified

2) when a child does not possess the sufficient “maturity” required to freely exercise a right, one must always try to ensure that the exercise of the right corresponds, as far as possible, with what we can consider that is the “real” will of the child

The construction of a human rights model for children, with or without disabilities

When a child does not possess the sufficient “maturity” required to freely exercise a right, could be: a) that the child could exercise his or her right after receiving the necessary support, then the child must be able to access all these support measures and then be able to freely exercise his or her right b) that the child cannot, then the right will be exercised by a third party qualified to do so, after due participation by the child and after he or she has received the necessary support, and always respecting the “real” will of the child

Thank you