Journal Article A Time to be Born and a Time to Die Get access Michael Freeman Michael Freeman Professor of English Law University College London Search for other works by this author on: Oxford Academic Google Scholar Current Legal Problems, Volume 56, Issue 1, 2003, Pages 603–649, https://doi.org/10.1093/clp/56.1.603 Published: 01 December 2003

I INTRODUCTION--A PRE-HISTORY Early legal statements are conspicuously silent on children's rights: Ten Commandments, arguably most influential of all legal codes, contains clear normative pronouncement on parent-child relations--Honor, thy father and thy mother. (1) But commandment is in terms of respect for parents, and it is silent on obligations of parents to love and nurture their (2) Is it then surprising that well into early modern times children were being prosecuted in England for abusing parents, but that prosecutions of parents for beating children appear not to have taken place? (3) One of earliest recognitions of children's rights is found in Massachusetts Body of Liberties of 1641. Parents are told not to choose their children's mates and not to use unnatural severity against their (4) Children, furthermore, are given free liberty to complain to Authorities for redress. (5) But this is also law that prescribes death penalty for children over sixteen who disobey their parents. (6) There is no evidence that children did in fact successfully litigate against their parents, nor is there any evidence that any children were executed. (7) This recognition of children's rights nevertheless remains interesting in showing, as it does, that 370 years ago, protection of children went hand-in-hand with adding power of state to parental authority. The two centuries that followed are hardly notable for their propagation of rights of The Victorian novel is replete with floggings of children: David Copperfield, Nicholas Nickleby, Oliver Twist, Jane Eyre, The Way of All Flesh--the litany is almost endless. Indeed, graphic descriptions of floggings permeate novels well into twentieth century: D.H Lawrence's The Rainbow, Richard Llewellyn's How Green Was My Valley, Lucy Maud Montgomery's Anne of Avonlea, and popular Billy Bunter stories. (8) The nineteenth century, not surprisingly, also saw birth of child-saving movement, spawning institutions like juvenile court. (9) Child-protection legislation also came about, commonly in English-speaking world, after campaign for its passage in England and after similar campaign to protect domestic animals. (10) Yet cruelty remained social construct, and founders of societies to protect children from abuse still vigorously defended corporal chastisement. Thus, one of founders of New York Society for Prevention of Cruelty to Children (SPCC), Henry Bergh, was prepared to uphold a good wholesome flogging as appropriate for disobedient children. (11) Others began to advocate children's rights and to voice some discomfort with corporal chastisement, as well. (12) Thus in 1892 American children's novelist Kate Douglas Wiggin thought it likely that of reason would have to replace the rod of birch. (13) In Sweden, Ellen Key in The Century of Child looked forward to increasing limitations on rights of parents over children, and to end of corporal punishment. (14) She described such punishment as humiliating for him who gives it as for him who receives it. (15) She looked forward to time when children would be treated as equals and be given the same consideration, same kind confidence which is shown to adults. (16) But most significant of these early thinkers was Janusz Korczak, best known today as man who voluntarily accompanied 200 children on their journey to Treblinka, where he and they were duly slaughtered. (17) His How to Love Child and The Right of Child to Respect contain Convention on Rights of Child so far ahead of its time--formulated as it was in 1910s--that it is not surprising world barely noticed. (18) Even today Korczak's writings have not been fully translated into English. (19) Of many rights Korczak accorded children was right to government that protects them from neglect, cruelty, and any exploitation of any kind. …

Journal Article The Human Rights of Children Get access Michael Freeman Michael Freeman Search for other works by this author on: Oxford Academic Google Scholar Current Legal Problems, Volume 63, Issue 1, 2010, Pages 1–44, https://doi.org/10.1093/clp/63.1.1 Published: 01 December 2010

In the early post-colonial period, modernization theorists, influenced by functionalism, considered tribalism to be particularistic and ascriptive rather than universalistic and achievement-oriented, and therefore dysfunctional for the development of a modern society. Distinctions between tribes, ethnic groups and nations have rarely been made systematically or precisely in social science. In contrast to the primordialists, A. Smith emphasises the contingency of modern nationalism, while insisting also on crucial elements of ethnic continuity in its formation. Primordialist theories of ethnicity and nationalism have been attractive because they appear to explain the strength and persistence of sentiments, which some influential sociological and political theories assumed would be eliminated by the forces of modernization. In a world of nations, of nation-states, of ethnonationalist challengers, of many and diverse non-ethnic solidarities, there is an urgent need to rethink Enlightenment cosmopolitanism in order to change the world, to the understanding of which theories of ethnonationalism have contributed so much.

Despite the development of the children’s rights movement, human rights scholarship continues to overlook the rights of children. Even those like Ronald Dworkin, who proclaim the need to take rights seriously, are curiously silent, even ambivalent, when it comes to children. This inattention often forces advocates of children’s rights to the margins of human rights scholarship. In the few places where serious philosophical discussion of children’s rights does take place, the analysis intends to diminish the value of rights for children. These critics are not malevolent, and typically want what is best for children, but they do not think it can be accomplished through a children’s rights agenda. This chapter lays out a persuasive argument for a children’s rights agenda, or, for taking children’s rights seriously. Drawing from philosophy, history, literature, popular media, and of course the law, this chapter argues against the conventional deficit view underlying most arguments against the recognition of children’s rights and makes a case for the importance of children’s rights where rights are the currency in use.

Law and science: science and law, Michael Freeman a just measure of science, David Nelken codes of practice: communicating between science and law, Chris Willlmore Bayesianism and proof, Mike Redmayne expert games in silicone gel breast implant litigation, Sheila Jasanoff DNA evidence in the courtroom: a social-psychological perspective, Jason Schklar the social production of rape trauma syndrome as science and as evidence, Shirley A. Dobbin and Sophia I. Gatowski the application of patent law principles to scientific developments: the problem within biotechnology, Margaret Llewelyn using law to define uncertain science in environmental policy, Lynda M. Warren some challenghes for science in the environmental regulation of industry, Patricia Park.

The CRC provides us with a normative framework, nothing more. And it is a framework, not the only one. There has been a tendency to assume it offered a definitive programme, and required only attention to implementation, putting the Convention into practice, examining obstacles, establishing institutions (for example, ombudswork), debating incorporation (Lundy et al., 2012). This is despite the fact that we know the Convention is largely about the perceived needs of children in the Global North (Harris-Short, 2003) and might look very different if children themselves had had input into its provisions (Lundy et al., 2015). Despite Article 12, the motivating force behind the Convention was the ‘image of the child as victim’, with the street child then the representative icon (Ennew, 2002).

The first concept to which thought must be given is ‘child’. In 1989, the drafters of the CRC could not agree a definition and foisted upon us a compromise. The provision in Article 1 purports to define ‘child’ but fails to do so. It digs a hole with traps for the unwary, made all the more hazardous by the non-legally binding paragraph in the Preamble which tells us that the ‘child’ (note not the foetus) ‘needs special safeguards and care, including appropriate legal protection, before as well as after birth’. Article 1 defines a child as any human being under the age of eighteen (and see Freeman, 2018). It imposes a uniform closure for childhood, unless the applicable law directs otherwise.

The last chapter discussed the general principles, as identified by the Committee on the Rights of the Child. This chapter considers some of the main rights in the Convention, using the standard taxonomy of protection (including prevention), provision and participation.

The Convention on the Rights of the Child (CRC) is the most ratified, and most swiftly ratified, international treaty in history. Only the United States, which played a dominant role in its formulation (C. P. Cohen, 2006), has not as yet ratified (Gunn, 2006). Somalia ratified in 2014, South Sudan in May 2015.

Rights are valuable commodities but without remedies they have only expressive value. The CRC paid little attention to this rather obvious point, and, as a result, barely addressed the question of how children were supposed to enforce the rights in the Convention. This should not surprise us. Were we really taking Article 12 seriously (Daly, 2018: 43)? How many of the leading cases on children’s rights were brought by children? Most, I suspect, were initiated by those wishing to gainsay children’s rights! Mrs Gillick? Nothing could have been further from her mind. Williamson? Fortunately, Baroness Hale was on hand to speak for the children.

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The UN Convention on the Rights of the Child is the most widely ratified human rights treaty in the world, yet everyday children still face poverty, violence, war, disease and disaster. Are the rights we currently afford to children enough? Combining historical analysis with international human rights law, Michael Freeman considers early legal and philosophical theories on children's rights before exploring the impact and limitations of the Convention itself. He also suggests ways that we may rethink children's rights in the future as well as identifying key areas for reform. This book will appeal to an interdisciplinary audience who are interested in children's rights, children's studies, the history of childhood, international human rights, and comparative family law. It is a crucial restatement of the importance of law, policy and rights in improving children's lives.

A number of disciplines have something to contribute to our understanding, and propagation of children’s rights. Literary studies (Bowlby, 1969; Todres and Higinbotham, 2016) and environmental studies (Hayward, 2013) are but two examples. I look here at sociology in the belief that it can be especially valuable to advocates of children’s rights. The academic discipline of the sociology of childhood, as part of childhood studies, should be seen not as a competitor, but as a fellow warrior in the battle to dismantle ‘childism’ (Young-Bruehl, 2012), and create a better world for children. Engagement through dialogue is called for. Hitherto, the initiative has been taken by childhood studies scholars, in particular Alanen (2010) and Mayall (2000, 2002) (see also Burman, 1995; Gallagher, 2008; Lenzer, 2002