There are moments where I become so overwhelmed by the injustice that exists in our world, where I find myself sandwiched in the corner of my room trying to breath amidst the tears after reading about Du’a Khalil Aswad, a young Yazidi girl being stoned to death for false suspicions of a relationship with a Sunni boy, the intensity of this subjective pain causing me to crush my fingers deep into the palm of my hands as I think about how witnesses can film rather than fight to stop the injustice. What would possess people to think that murder of a child is justifiable?
Then I read about the commercial exploitation of children both sexually and for labour with our most vulnerable including refugee and migrant children, those homeless and impoverished among other demographic and high-risk factors and where the use of internet technology enabling these vicious predators to recruit and sell children. The shocking reality that the Global Report on Trafficking in Persons shows that in some parts of the world, there is a large proportion of women as traffickers. While we often assume that parenthood is absolute in its protection and love toward children, social and environmental conditions as shown by the endemic proportions of global infanticide clearly prove that this is not the case for our vulnerable minors. As I am currently in the process of possibly becoming a permanent carer of a small child here in Australia, where I will become a guardian to a child who would otherwise have no security or stability on a permanent basis due to difficulties with their birth family. When asked how that differs from adoption where a child is legally considered as your child, the only difference is ownership.
The rights of a child is indeed a very complex framework that involves intricate questions relating to ownership, privacy and capacity that challenge the view that children are merely an independent choice within the private sphere of family and thus remain impenetrable from the jurisdiction of the law until they are legally of age. Indeed, privacy regulations are vital to ensure that each person enjoys the right to be protected from engaging in autonomous activities outside of public scrutiny and unauthorised intrusion, within reason. This includes ensuring that the state balances this privacy with security and the protection it largely affords to the public including intervention that safeguards the rights of our most vulnerable.
While the rights of a child embodied in the United Nations Convention on the Rights of a Child (CRC) and the fifty-four articles therewith that lay the foundation exemplifying the importance of protecting children from harm and to lead a fulfilling life, it has come under scrutiny for its provisions being brazenly paternalistic that fail to address the autonomy and competence available to children. A necessary balance is required between children being vulnerable and dependent with autonomy and competence, child protection and advocacy with increased appreciation of a child’ ability to make decisions.
This can be seen in the judicial system of Victoria (Australia) where children are enabled with the right to testimony in family law as well as other criminal and civil proceedings whereby to determine competency, judges factor in the age and other determinable investigations such as whether the child understands the nature of being under oath or give under special circumstances unsworn evidence. Continued advocacy in Victoria to grant children stronger rights by taking a more flexible approach on a case-by-case basis that instead presumes a child as being capable until competency itself is questioned (rather than the other way around), which is slowly challenging the traditional, paternalistic approach.
Children being subject to rights imply them to be subjects to the law and an exploration of how the law can ensure the protection of these rights without abandoning their entitlement to play an active role viz., the assumption that they lack the autonomy needed to claim such rights must be reconsidered. Rather, their rights are parallel to that of an adult, but distinguished by a more sophisticated application. It is clear that competency and rights clearly differ and though a child according the UN Convention is a person who is under the age of 18 unless national laws state otherwise, competency to provide evidence is fast becoming obtainable that challenges the socially constructed view that capacity is age related.
It also challenges the theoretical approach. When an adult legally signs a contract, they are considered capable of understanding the binding nature that would enable them to adhere to the obligations set out within the contract. Social contract theorists such as John Locke argued that “children were in a temporary state of inequality because of their irrationality.” As such, children cannot have rights because they lack the cognitive capacity that enables them to make rational choices. John Rawls states that, “it is sometimes thought that basic rights and liberties should vary with capacity, but justice as fairness denies this: provided the minimum for moral personality is satisfied, a person is owed all the guarantees of justice.”
The largely incorrect opinion that children lack capacity deprives them of the chance to develop the intrinsic quality that is a natural part of human cognition, and having witnessed some parents and teachers fail to contribute to the development of reflective abilities by simply telling children how they should behave and what to think clearly is a pedagogical error, and in response children fail to ever learn to recognise their own ableness in decision making leading them to rely on the opinions of others even into adulthood.
What is this capacity for a moral personality? Jeremy Bentham has purported that people can only be afforded legal rights but moral rights is ‘nonsense on stilts’ and though it is true that there may be a complex theoretical underpinning to the concept, rights and freedoms have nevertheless become imbedded in our contemporary response to the external world. Rawls makes it clear that all human beings – save for a very distinct few who either from birth or accident have been deprived of this quality – contain the necessary attributes that would enable them with the quality of a moral personality, even if capacities vary.
That is, though all people have varying capacities that enable an understanding and exercise of justice, they are still entitled to equal liberties. The exploration of children’ rights are indeed linked closely to the subject of capacity, where they are assumed unable and incompetent despite the presence of the faculty that is merely in its developmental stage. This immediate denial of self-determination reduces an adequate understanding of the broader responsibilities that influence and shape the pre-existing ability that enables capacity itself or as Rawls continues with, “[o]nly scattered individuals are without this capacity, or its realization to a minimum degree, and the failure to realize it is the consequence of unjust and impoverished social circumstances, or fortuitous contingencies.” Capacity as a socially constructed and age-related concept could simply shut them off from the realisation of their own ability for self-determination.
When I find myself having conversations with some of the young children at the various primary schools I work in, their dispositions and attention immediately change when they realise that I am treating them as an individual, whereby they suddenly become conscious of their behaviour and of what they are saying. They are being heard. The largely incorrect opinion that children lack capacity deprives them of the chance to develop the intrinsic quality that is a natural part of human cognition, and having witnessed some parents and teachers fail to contribute to the development of reflective abilities by simply telling children how they should behave and what to think clearly is a pedagogical error, and in response children fail to epistemically ever learn to recognise their own ableness in decision making leading them to relying on the opinions of others even into adulthood.
While it is clear that we must ensure that we protect children from any violation of their rights, there is a shifting trend that children can be recognised as rights-holders and that the assessment of competency is leaning toward a better understanding of the nature of childhood and development. It is complex to say the least that there exists a problem of parental rights and ownership that can either undermine the rights of children or could depreciate the ability for a family to raise a child, but a balance itself needs to be reached that condones any act that will inhibit the development and education of a child while at the same time promote reflective practices and education that will give children the capacity to understand how to make decisions for themselves.
It is what has been referred to as moral parenthood (rather than biological). It is a recognition that challenges both the idea that a child is afforded rights solely by their biological parents that could quite easily been neglected or abused and by seeing children as having these rights would enforce both legally and socially moral attitudes that would shift the predisposition of thinking for a child rather than listening to a child. With adequate mechanisms in place, listening to them and speaking in their language to work out what they find important, to both consider and enable them the opportunity to express their point of view will provide them with the capacity to think independently, consciously and morally.
 UN Office on Drugs and Crime (UNODC), Global Report on Trafficking in Persons, 2014, available at: http://www.refworld.org/docid/5492a3d94.html %5Baccessed 10 June 2017]
 Evidence Act 1958 (Vic) – in Victoria, it is under the age of 14.
 R v Braiser (1779) 1 Leach 199; Omychund v Barker (1744) 1 Atk 21.
 Evidence Act 1958 (Vic) s 23.
 Article 1 CRC
 Mhiari Cowden, Children’s Rights: From Philosophy to Policy, Springer (2016) 26
 John Rawls, A Theory of Justice, Harvard University Press (2009) 77
 See Jeremy Bentham, ‘Anarchical fallacies; being an examination of the Declaration of Rights issued during the French Revolution’ (1791)
 Op. Cit., Rawls.
 David Archard, Children: Rights and Childhood, Routledge, London (1993) 109