New Zealand Case Studies to Test the Meaning and Use of Article 5 of the 1989 United Nations Convention on the Rights of the Child

Article 5 of the UN Convention on the Rights of the Child recognises the importance of parents and wider family members in ensuring that children are given appropriate directions on their rights in the UN Convention on the Rights of the Child. This paper analyses the wording of Article 5 and four New Zealand case studies to test the possible interpretations of Article 5. The paper builds on the work of Landsdown and Kamchedzera (Landsdown, 2005; Kamchedzera, 2012) who have done previous comprehensive analyses of the ambit and significance of the wording in Article 5. Article 5, like all international instruments, is not designed to provide prescriptive answers to challenging problems where there is a clash of which rights should prevail for children in particular situations. The central theme of this paper is that where there is a clash of a child’s rights, the tiebreaker should be which right in the particular situation will best enhance the unique identity of a particular child. The paper draws on the work of Ronen (Ronen, 2004) which argues that the purpose of a child’s rights framework is so the child can construct their individualised identity which is authentic and real for that particular child. The New Zealand case studies have been chosen to exemplify particular aspects of Article 5 and see how they are played out in particular court settings and whether the outcome enhances or inhibits the child’s opportunity to develop their unique identity.