Law and Children’s Decision Making: What Is the Rights Approach?
This paper outlines three broad models that have informed the relationship between the law and children’s involvement in decision making—the property/instrumentalist approach, the welfare approach, and a rights-based approach. It identifies and critiques contemporary legal practices that regulate ch...
| Main Author: | |
|---|---|
| Format: | Article |
| Language: | English |
| Published: |
MDPI AG
2023-08-01
|
| Series: | Laws |
| Subjects: | |
| Online Access: | https://www.mdpi.com/2075-471X/12/4/71 |
| _version_ | 1827729414761218048 |
|---|---|
| author | John Tobin |
| author_facet | John Tobin |
| author_sort | John Tobin |
| collection | DOAJ |
| description | This paper outlines three broad models that have informed the relationship between the law and children’s involvement in decision making—the property/instrumentalist approach, the welfare approach, and a rights-based approach. It identifies and critiques contemporary legal practices that regulate children’s decision making against the standards required under a rights-based approach. The focus is on three contexts—(i) statutory bright line minimum age rules; (ii) presumptive age limits, and (iii) individual decision making involving children where there is often an interplay between the principle of Gillick competency and the parens patriae jurisdiction of a court. The key arguments advanced are that a rights-based approach tolerates minimum age rules and presumptive age limits under certain conditions. A rights-based approach also aligns closely with the principle of Gillick competency but offers a deeper and more nuanced insight into how to enable and support decision making with children across childhood. Finally, a rights-based approach also offers novel insights into how the parens patriae jurisdiction of common law courts, with its historical emphasis on the protection of children, could be developed to better protect children’s rights and decisional autonomy. |
| first_indexed | 2024-03-10T23:48:30Z |
| format | Article |
| id | doaj.art-6258ede4a0ab448299c9538d18107965 |
| institution | Directory Open Access Journal |
| issn | 2075-471X |
| language | English |
| last_indexed | 2024-03-10T23:48:30Z |
| publishDate | 2023-08-01 |
| publisher | MDPI AG |
| record_format | Article |
| series | Laws |
| spelling | doaj.art-6258ede4a0ab448299c9538d181079652023-11-19T01:53:01ZengMDPI AGLaws2075-471X2023-08-011247110.3390/laws12040071Law and Children’s Decision Making: What Is the Rights Approach?John Tobin0Melbourne Law School, University of Melbourne, Carlton, VIC 3010, AustraliaThis paper outlines three broad models that have informed the relationship between the law and children’s involvement in decision making—the property/instrumentalist approach, the welfare approach, and a rights-based approach. It identifies and critiques contemporary legal practices that regulate children’s decision making against the standards required under a rights-based approach. The focus is on three contexts—(i) statutory bright line minimum age rules; (ii) presumptive age limits, and (iii) individual decision making involving children where there is often an interplay between the principle of Gillick competency and the parens patriae jurisdiction of a court. The key arguments advanced are that a rights-based approach tolerates minimum age rules and presumptive age limits under certain conditions. A rights-based approach also aligns closely with the principle of Gillick competency but offers a deeper and more nuanced insight into how to enable and support decision making with children across childhood. Finally, a rights-based approach also offers novel insights into how the parens patriae jurisdiction of common law courts, with its historical emphasis on the protection of children, could be developed to better protect children’s rights and decisional autonomy.https://www.mdpi.com/2075-471X/12/4/71childrendecision makinghuman rightsGillick competencyrights-based approach |
| spellingShingle | John Tobin Law and Children’s Decision Making: What Is the Rights Approach? Laws children decision making human rights Gillick competency rights-based approach |
| title | Law and Children’s Decision Making: What Is the Rights Approach? |
| title_full | Law and Children’s Decision Making: What Is the Rights Approach? |
| title_fullStr | Law and Children’s Decision Making: What Is the Rights Approach? |
| title_full_unstemmed | Law and Children’s Decision Making: What Is the Rights Approach? |
| title_short | Law and Children’s Decision Making: What Is the Rights Approach? |
| title_sort | law and children s decision making what is the rights approach |
| topic | children decision making human rights Gillick competency rights-based approach |
| url | https://www.mdpi.com/2075-471X/12/4/71 |
| work_keys_str_mv | AT johntobin lawandchildrensdecisionmakingwhatistherightsapproach |