The Trust Model of Children’s Rights

2020 ◽  
Vol 7 (2) ◽  
pp. 219-237
Author(s):  
Kenneth R. Pike
Keyword(s):  
Common Law ◽  
Parental Control ◽  
Children's Rights ◽  
Trust Model ◽  
Children’S Rights ◽  
Parent Child Relationship ◽  
Structural Resemblance ◽  
Child Relationship ◽  
Children And Parents ◽  
Moral Relationship

AbstractIs parental control over children best understood in terms of trusteeship or similar fiduciary obligations? This essay contemplates the elements of legal trusts and fiduciarity as they might relate to the moral relationship between children and parents. Though many accounts of upbringing advocate parent-child relationship models with structural resemblance to trust-like relationships, it is unclear who grants moral trusts, how trustees are actually selected, or how to identify proper beneficiaries. By considering these and other classical elements of relationships of trust, this essay seeks to clarify and explore the trust model’s role, if any, in understanding children’s rights. Such exploration raises the possibility that another element of common law, the duty to rescue, may serve to enhance the trust model of children’s rights.

scholarly journals "Child Divorce": A Break from Parental Responsibilities and Rights Due to the Traditional Socio-Cultural Practices and Beliefs of the Parents

2017 ◽  
Vol 15 (1) ◽  
pp. 176
Author(s):  
Mildred Bekink
Keyword(s):  
Cultural Beliefs ◽  
Children's Rights ◽  
Cultural Practice ◽  
Children’S Rights ◽  
Best Interests ◽  
Specific Reference ◽  
Parent Child Relationship ◽  
Child Relationship ◽  
The Family ◽  
Parent Child

In a recent ground-breaking case the South African courts were for the first time requested to use their discretion to interfere in the parent-child relationship due to the traditional socio-cultural beliefs of the parents. In what has been described as "every parent's nightmare; the fancy of many teenagers", a 16 year-old schoolgirl from Milerton in the Western Cape asked to be "freed" from her parents to live semi-independently from them because of her unhappiness with the conservative manner in which her parents treated her. After considering the matter the judge assigned to the case granted her request to live semi-independently with a school friend and her family (called by the judge the host family) until she reaches the age of 18 (her majority). Her parents were accorded permission to have limited contact with her. This case represents an example of the difficulties involved when balancing the rights of a teenager against those of the parents in matters of socio-cultural practice and belief. In a multi-cultural society such as South Africa the case raises numerous serious questions for other families. For instance, what standards will a court use to determine if parents are too conservative in bringing up their children and what factors will be taken into account? How much freedom and autonomy should children be given? How will courts prevent children from misusing the system just to get what their friends have, and - the ultimate question - are the rights of children superior to the traditional rights of parents in matters of socio-cultural practice, with specific reference to their upbringing? In this context it is the aim of this contribution to focus primarily on the questions asked above. Possible solutions for striking a balance between the rights of children and their parents are explored. The submission is made that the best interests principle is still the most important factor to be taken into account when balancing or weighing competing rights and interests concerning children. The principle of the best interests of the child, the founding principle of children's rights, however, is anchored in the family, and any break between the two should be carefully considered. It is concluded that in an attempt to resolve disputes between parents and their children the relevant provisions of the Constitution and the Children's Act must be considered and must be balanced and tested in relation to each other for constitutional consistency and compliance. It is also submitted that caution should be taken by the legislative framework not to encourage children to break the parent-child relationship on a mere whim, as an overemphasis of children's rights might result in the dilution of the sense of the value of the family in society.

Children's Rights

2013 ◽  
Author(s):  
Karen M. Staller
Keyword(s):  
Common Law ◽  
Children's Rights ◽  
State Intervention ◽  
Children’S Rights ◽  
Chronological Age ◽  
Rights Of The Child ◽  
Parens Patriae ◽  
The Common ◽  
The Right ◽  
Family Autonomy

Children's rights can refer to moral rights—basic human rights regardless of age or station—and legal rights, those awarded based on chronological age or level of maturity. They are conceptualized in three categories: protection rights (the right to be free from harm and exploitation), provision rights (the right to have their basic needs met), and participation rights (the right to have a say). Children's rights can conflict with family autonomy, and state intervention is based on the common law doctrine of parens patriae. The UN's Convention on the Rights of the Child is the most comprehensive statement of children's rights to date.

Children’s rights in Taiwan: A qualitative study on social workers’ perspectives

2020 ◽  
pp. 002087282095185
Author(s):  
Hsin-Yi Chen ◽  
I-Chen Tang
Keyword(s):  
Qualitative Study ◽  
Young Children ◽  
United Nations ◽  
Social Workers ◽  
Children's Rights ◽  
Children’S Rights ◽  
Rights Of The Child ◽  
Children And Parents ◽  
United Nations Convention ◽  
The United Nations

The aim of this study was to investigate the perspectives of social workers in Taiwan on children’s rights. Among the 94 social workers who were interviewed, most were familiar with children’s rights terminology. From the results of this study, parental needs and the inability of young children to communicate effectively hindered the balance between protection of and participation by children. To better implement children’s rights, social workers should gain a deeper understanding of the United Nations Convention on the Rights of the Child (UNCRC) and develop skills for communicating well with children and parents.

Children's rights: a challenge for social work

2008 ◽  
Vol 51 (1) ◽  
pp. 37-46 ◽  
Author(s):  
Rudi Roose ◽  
Maria De Bie
Keyword(s):  
Social Work ◽  
Children's Rights ◽  
Children’S Rights ◽  
Children And Parents ◽  
Travail Social ◽  
Trabajo Social

English A children's rights approach to social work might have adverse consequences for children and parents when it ignores a view on rights as a lever for commitment and the question of how these rights can be realized in different contexts and with respect for the rights of other actors involved. French Une approche de travail social centrée sur les droits des enfants peut avoir des conséquences négatives auprès des enfants et des parents lorsqu'elle ne considère pas les droits comme un levier pour l'engagement et lorsqu'elle ne tient pas compte de la façon dont ces droits peuvent s'exercer dans différents contextes et en regard des droits des autres acteurs concernés. Spanish Abordar el trabajo social desde el punto de vista de los derechos de los niños puede tener consecuencias negativas para los niños y los padres cuando ignora una visión de derechos como palanca de dedicación y compromiso, y cuando ignora el cómo los derechos pueden realizarse en distintos contextos respetando los derechos de otros actores.

scholarly journals Does the Differential Criterion for Vesting Parental Rights and Responsibilities of Unmarried Parents Violate International Law? A Legislative and Social Study of Three African Countries

2011 ◽  
Vol 55 (2) ◽  
pp. 203-229
Author(s):  
Julia Sloth-Nielsen ◽  
Lorenzo Wakefield ◽  
Nkatha L Murungi
Keyword(s):  
Common Law ◽  
Social Study ◽  
Children's Rights ◽  
Customary Law ◽  
Children’S Rights ◽  
International Human Rights Law ◽  
African Countries ◽  
The Face ◽  
International Obligations ◽  
The Right

AbstractThe right to non-discrimination for all children is established in international human rights law. International children's rights law further provides for the common responsibility of parents for the maintenance of their children. African customary law and common law have always made a distinction between children born in and out of wedlock so far as the duty to maintain them is concerned. The resilience of this customary and common law approach is evident in statutory provisions of the countries discussed in this article. This is despite international obligations under children's rights treaties ratified by these countries. On the face of it, the distinction of responsibility based on marital status seems harmless. However, in view of gender inequities and resource distribution between men and women in society, such a distinction has serious implications for the rights of affected children.

Practitioners' views on involving young children in decision making: Challenges for the children's rights agenda

2012 ◽  
Vol 37 (2) ◽  
pp. 4-9 ◽  
Author(s):  
Kim Hudson
Keyword(s):  
Decision Making ◽  
Early Childhood ◽  
Young Children ◽  
Practical Importance ◽  
Children's Rights ◽  
Children’S Rights ◽  
Research Project ◽  
Theory To Practice ◽  
Child Relationship ◽  
Childcare Workers

THIS ARTICLE PRESENTS THE key findings and discussion from a research project and subsequent report: Involving young children in decision making: An exploration of practitioners' views. This research explored early childhood practitioners'—childcare workers, kindergarten, preprimary and grade 1–2 teachers—views on decision making for young children (aged six years and under). The key findings raise some important observations and challenges for the children's rights agenda and its efficacy in childcare and educational settings. Practitioners' views highlighted inconsistencies and tensions from theory to practice where involving young children in decision making is not always straightforward. It is argued that, if decision making is to be an authentic vehicle for children's rights, there needs to be a comprehensive dialogue on what decision making is in age-relevant terms and its practical importance to children's rights in early education and childcare environments. Importantly, this dialogue needs to address some of the practical inhibitors to participative decision making such as practitioners' views on children's capacity to make decisions, the practitioner–child relationship, parameters of discipline and behavioural control, curriculum requirements and practitioners' time and resources.

scholarly journals Perlindungan Hukum Anak Dalam Keluarga Poligami Ditinjau dari Hukum Islam dan Hukum Positif

2020 ◽  
Vol 8 (02) ◽  
pp. 180
Author(s):  
Warsono Warsono
Keyword(s):  
Islamic Law ◽  
Legal Protection ◽  
Children's Rights ◽  
Children’S Rights ◽  
Positive Law ◽  
Children And Parents ◽  
The Family ◽  
Family Harmony ◽  
To Receive ◽  
The Relationship

This study aims to analyze the implementation of legal protection for children in polygamous families in terms of Islamic and positive law in Metro City, the inhibiting factors and efforts to overcome the obstacles that occur in polygamous families in terms of Islamic law and positive law in Metro City. This research is descriptive qualitative. Data collection was done by means of interviews and documentation. Data were analyzed by means of data reduction, data presentation and drawing conclusions. Based on the results of the analysis, the implementation of legal protection for children in a polygamous family in terms of Islamic law and positive, that is, legally positive has not been carried out well, but there is one family that is carried out, this is due to several factors, namely raising and caring for children, meeting all the necessities of life. and maintaining honor, responsibility, guiding and educating, as well as maintaining the health and welfare of children. Meanwhile, from Islamic law, there is something that is well implemented and also unlike the child's right to live, namely, children's rights in the clarity of their lines, children's rights in giving a good name, children's rights to obtain breast milk, children's rights to receive care, children's rights in property ownership. objects, children's rights in obtaining education and teaching. The factors that inhibit the needs of polygamous children, the educational factor of children in polygamous families, the factors of the relationship between children from polygamous families, and the factors of the relationship between children and parents. As well as efforts to overcome obstacles that occur in a polygamous family, namely upholding the husband's leadership in the family, the objectivity and neutrality of the husband, husband's justice, the husband acts wisely, the husband's love, the husband dares to give in for the sake of family harmony, the husband can maintain a balance of rights and obligations.

scholarly journals Beyond the Life Sentence – A Children’s Rights Lens on Sentencing for Murder

2021 ◽  
Vol 29 (4) ◽  
pp. 972-1005
Author(s):  
Yannick van den Brink ◽  
Nessa Lynch
Keyword(s):  
Common Law ◽  
Children's Rights ◽  
Children’S Rights ◽  
The Public ◽  
Rights Of The Child ◽  
Legitimate Interest ◽  
Life Sentence ◽  
The Common ◽  
Selection Of ◽  
Compliant Approach

Abstract Children around the world who have been found responsible for murder continue to be sentenced to indeterminate or long periods of detention. This is in contravention of children’s rights standards which urge a ban on the life sentence and require that detention is used only for the shortest appropriate period of time. Nonetheless, the public and victims of crime have a legitimate interest in the protection of public safety and appropriate accountability for serious offending. Further, there is little guidance on what a rights compliant approach in such cases might involve. This work builds on previous studies of how children are sentenced for murder across the common law world and extends the analysis to a selection of European civil law jurisdictions. It explores and applies recent updated guidance from the Committee on the Rights of the Child and seeks to develop a framework for a children’s rights and human rights compliant approach to such cases.

scholarly journals Gesinspolitiek en die ouer-kind verhouding

2017 ◽  
Vol 1 (1) ◽  
pp. 223
Author(s):  
C Maré
Keyword(s):  
Decision Making ◽  
Common Law ◽  
The State ◽  
Fundamental Rights ◽  
Customary Law ◽  
Decision Making Process ◽  
Parent Child Relationship ◽  
Child Relationship ◽  
The Family ◽  
Parent Child

The family-unit did, in one form or another occur since the beginning of man’s existence. The aim of the unit was to sire children and to provide for them until they reached maturity. To realise this provisional aim, a decision making process was required. The child and her parents’ individual interests can generate conflict where decisions have to be made regarding various questions, for example: which church the child should attend and or whether she should attend any church; which school a child should be enrolled in; with whom the child may associate and with whom not; if the child may use contraceptives, and whether an adolescent female may of her free will request or reject an abortion. Henceforth it must be kept in mind that the decision making process, i.e. family politics, is unique for each parent-child relationship. Various social, economic and cultural factors can influence the handling of conflict in the decision making process. Furthermore, fundamental rights can influence the decision making process differently in respectively the common law parent-child relationship and the customary law parent-child relationship. Central to the latter situation is the fact that fundamental rights recognise individual rights, while customary law is founded in communalism. It is furthermore important to note that the nature of the parent-child relationship is not neutral, but is determined by historical and social elements within the community. There are various statutory provisions in terms of which courts can intervene in the exercise of parental authority and can even terminate it, over and above the fact that the courts possess a common law competence as upper guardian. However, no law expressly grants the court the power to intervene in the parent-child relationship where conflict arises within the decision making process. The courts only have the authority to intervene in the parent-child relationship in the event of physical maltreatment or molestation of a child, in divorce proceedings, and where consent must be granted for a minor’s marriage. Even the family advocate is employed as mediator only in divorce matters. The court as common law upper guardian of minors, will only intervene in the parent-child relationship if it is of the opinion that such a step is in the interests of the child and it will therefor not be done lightly. The current constitutional provisions regarding children in a multi-cultural society has brought about changes in the parent-child relationship. Reading together sections 9 and 28 of the 1996-constitution puts it beyond doubt that any child under the age of 18 years is a person possessing fundamental rights. The state is drawn in as a third party in the parent-child relationship and must ensure that the interests of the child, that is fundamental rights, are guaranteed. Section 28 of the 1996-constitution goes further than section 30 of the 1993-constitution and provides a description for the meaning of parental care. The reference to family care, parental care and appropriate alternative care in the 1996-constitution can be indicative of the fact that the changed relationships wherein children find themselves within the community (other than the nuclear family) are recognised. The constitutional provisions also causes a change of emphasis in the parent-child relationship. The emphasis changes from the parent’s rights and responsibilities to the rights that a child may claim. The child can enforce her rights against the state and her parents. The yardstick which determines whether the child is entitled to its constitutional rights, is in whether such a claim would be in the best interests of the child. If the child approaches the High Court as the common law upper guardian to enforce her rights, or to strike a balance in the decision making process, the state must supply the child with the necessary legal representation. Due to the relevant constitutional provisions, the parent-child relationship can no longer be considered to be regulated merely by rules of authority, but the emphasis has shifted to the promotion of the child’s interests. The best interest of the child must thus be the guiding principle in all legal proceedings. It implies further that the South African family law approach to balancing the decision making process within the parent-child relationship has also changed 

scholarly journals CHILDREN BEYOND CONTROL IN MALAYSIAN COURT FOR CHILDREN

2019 ◽  
pp. 62-70
Author(s):  
S.N. Aishah S.N. Mohamad
Keyword(s):  
Common Law ◽  
Parental Authority ◽  
Parent Child Relationship ◽  
Family Conflicts ◽  
Running Away ◽  
Library Research ◽  
Child Relationship ◽  
Parens Patriae ◽  
The Government ◽  
Control Order

It is well known that the Malaysian Court For Children has jurisdiction over the children who commit crimes and being the victims of abuse, neglect or immoral behaviour. Nevertheless, not many people aware that the court can also hear applications against children beyond the control of their parents or guardians although their misbehaviour is non-criminal in nature such as truancy, running away from home, coming home late and disobedience of parental orders. This granting of jurisdiction indicates the intervention of government in inter-family conflicts, specifically relating to the parent-child relationship. The “beyond control” order made by the court will transfer parental authority from the parents to the government. Therefore, this study is conducted to identify the basis of the jurisdiction of the Court For Children in Malaysia in deciding children beyond control cases and to analyse to what extent the court may intervene in resolving their misbehaviour. To achieve such objectives, this study applies the library research method in collecting data by analysing statutes, books, journals, print media, conference proceedings and other documents. This study concludes that the handling of children beyond control cases by the Court For Children is done based on parens patriae principle which originates from the English common law whereby the parent's failure in controlling their children allows the court to intervene.

Sign in / Sign up

Export Citation Format

Share Document