The rights of the developing child
As children learn, develop and acquire more skills, their legal position also changes. Professor of Children’s Rights Ton Liefaard works closely together with Leiden social sciences researchers to shed light on these growing capacities and their implications for our legal system. ‘Our ideas about children’s rights are still very inconsistent.’
As children grow, learn and develop, so does their ability to assess situations and take decisions. According to the UN Convention on the Rights of the Child, ratified by nearly every country in the world, this changes children’s legal position in relation to their parents, doctors, and others. In practice, this principle still leaves many questions unanswered. For example, a recent court case in Alkmaar centred on whether a twelve-year-old boy should be allowed to decide whether to undergo chemotherapy. The boy didn’t want to, but this would have greatly diminished his chances of survival. His father took legal action to force his son to undergo treatment. ‘In the Alkmaar case the judge ruled that we cannot ignore a child’s ability to make decisions, even if his decision inconveniences others. In my opinion, this is also the crux of the UN Convention of the Rights of the Child.'
Improving children’s legal position
Ton Liefaard and his research group investigate among other things the strength of children’s legal position in various countries; to what extent are their rights recognised and implemented in practice? Liefaard: ‘For example, we recently presented a report to the European Council on the legal position of children in biomedical decisions. We observed great differences across Europe, for instance in the legal recognition of transgender and intersex children. Countries also have very different ideas about the extent to which children should be allowed to decide on medication and medical treatment.’
In the report, researchers offer leads for recognising transgender and intersex children as a group, or guidelines to help states support medical professionals. The report is intended to help shape the European Council’s agenda in the years to come.
Legal position is not the only issue. Countries often struggle with the question of to what extent and how children can be given a say in current legal procedures. ‘Our ideas around these topics are highly inconsistent. For example, in the Netherlands we believe children’s rights are important, but as soon as a child might be involved in an ethical decision with important consequences – for instance medical treatment – we suddenly have qualms. And also on a ‘smaller’ scale, you can have your doubts about our legal principles. For example, according to Dutch law, in case of a divorce, children aged 12 and older are heard by the judge. However, it’s unclear why the legislation uses this particular cut-off point. Furthermore, the question is how the rights of children are protected in daily reality. For example, children have the right to be heard in decisions involving youth assistance and child protection, but how is this given form in practice? With our research we want to challenge current legal practice and check that our assumptions are correct. ‘We also use our research on children’s rights to train legal professionals and social workers, for example in the context of juvenile justice. Our recent training programme, developed at European level, proved to be a great success,’ says Liefaard. ‘It’s already been followed by around a thousand people from 11 different countries, and it’s been translated into a number of languages.’
Collaboration with social sciences
One of the important underlying questions in research on children’s rights concerns the extent to which children are able to make their own decisions and effectively take part in procedures and decision-making. ‘We often underestimate children’s abilities,’ Liefaard says, ‘hich is why the research of people like Eveline Crone is so important. Thanks to her research and that of her colleagues at the Faculty of Social and Behavioural Sciences and our researchers at the Faculty of Law, we can gain better insight into children’s development and capacities.’
Institute of Private Law, department Child Law
More about Ton Liefaard’s research
UN Convention on the Rights of Children (in Dutch)
Report Ton Liefaard for the European Council
Training ‘Can Anyone Hear Me? – Child-friendly justice