Rewriting Children’s Rights Judgments: From Academic Vision to New Practice

Description

This important edited collection is the culmination of research undertaken by the Children’s Rights Judgments Project. This initiative involved academic experts revisiting existing case law, drawn from a range of legal sub-disciplines and jurisdictions, and redrafting the judgment from a children’s rights perspective. The rewritten judgments shed light on the conceptual and practical challenges of securing children’s rights within judicial decision-making and explore how developments in theory and practice can inform and (re-)invigorate the legal protection of children’s rights. Collectively, the judgments point to five key factors that support a children’s rights-based approach to judgment writing. These include: using children’s rights law and principles; drawing on academic insights and evidence; endorsing child friendly procedures; adopting a children’s rights focused narrative; and using child-friendly language. Each judgment is accompanied by a commentary explaining the historical and legal context of the original case and the rationale underpinning the revised judgment including the particular children’s rights perspective adopted; the extent to which it addresses the children’s rights deficiencies evident in the original judgment; and the potential impact the alternative version might have had on law, policy or practice. Presented thematically, with contributions from leading scholars in the field, this innovative collection offers a truly new and unique perspective on children’s rights. Foreword Acknowledgements Table of Contents Notes on Contributors Part I: Children’s Rights Judgments: From Academic Vision to New Practice 1. Introducing Children's Rights Judgments I. Towards Collaboration II. The Organisation of the Book III. Overview of Contributions 2. Judging Children's Rights: Tendencies, Tensions, Constraints and Opportunities I. Introduction II. Why Children"s Rights Judgments? III. The Importance of the Judiciary in Advancing Children"s Rights IV. Judging Children"s Rights: Common Tendencies V. Judging Children"s Rights: Common Tensions and Constraints VI. Concluding Comments 3. Towards Children's Rights Judgments I. Introduction II. Utilising Formal Legal Tools: The CRC in Children"s Rights Judgments III. Utilising Academic Scholarship: Unpacking Theoretical Tensions, Conceptual Challenges and Prevailing Presumptions IV. Child-friendly Justice: Protecting the Child"s Right to be Heard in Legal Proceedings V. Telling a Different Story: The Use of Narrative in Children"s Rights Judgments VI. Speaking to Children: the Audience for a Children"s Rights Judgment VII. Concluding Comments Part II: Children’s Rights and Family Life 4. Commentary on Re X and Y (Foreign Surrogacy) I. Introduction II. Background III. A Comparison of the Original and Rewritten Judgment IV. Legal Developments since Re X And Y (Foreign Surrogacy) V. Conclusion Judgment: Family Division of the High Court (England and Wales) Re X and Y (Foreign Surrogacy) 5. Commentary on CD v ST I. Introduction II. Employment Rights for Modern Day Families III. Who are Regarded as Parents Under the Present Legal Frameworks? IV. Overview of the Judgment in CD v ST V. Opinion of Advocate Kokott VI. Z v A Government Department and the Board of Management of a Community School VII. The Court"s Decision VIII. A Children"s Rights Perspective IX. The Re-written Judgment X. Conclusion Judgment: Court of Justice of the European Union (Grand Chamber) CD v ST 6. Commentary on Re C v XYZ County Council I. Introduction II. Background III. The Court of Appeal"s Decision and Fenton-Glynn"s Dissent Compared IV. Responses to, and Developments Since, Re C V. Conclusion Judgment: Court of Appeal (England and Wales) Re C v XYZ County Council 7. Commentary on Gas and Dubois v France I. Introduction II. The Judgment of the European Court of Human Rights III. The Rewritten Judgment IV. Conclusion Judgment: European Court of Human Rights Gas and Dubois v France 8. Commentary on P-S (Children) I. Introduction II. Original Judgment III. The Re-written Judgment IV. Concluding Comments Judgment: Court of Appeal (Civil Division) (England and Wales) P-S (Children) 9. Commentary on the Judgment of the Hoge Raad of the 5th December 2014 I. Introduction II. Dutch Family Law and the Procedural Position of the Minor III. Commentary IV. Conclusions Judgment: The Netherlands Supreme Court Hoge Raad 10. Commentary on AAA v Associated Newspapers Ltd I. Introduction II. The Rewritten Judgment III. The Value of the Rewritten Judgment Judgment: Court of Appeal (England and Wales) AAA v Associated Newspapers Ltd Part III: Children’s Rights and Medical Decision-making 11. Commentary on Re W (A Minor) (Consent to Medical Treatment) I. Introduction II. The Autonomy of Children Prior to Re W III. The Original Re W Judgment IV. Rewritten Judgment of Gilmore LJ V. Conclusion Judgment: Court of Appeal (England and Wales) Re W (A Minor) (Consent to Medical Treatment) 12. F v F I. Facts and Issues II. Context III. Responses to the Judgment IV. Adolescent Autonomy and Medical Treatment V. Judicial Conclusion on L and M"s Reasoning VI. Differentiating between the Respective Needs and Wishes of the Two Children VII. L and M"s Participation in the Court Process Judgment: High Court of Justice Family Division (England and Wales) F v F 13. Commentary on Re T (A Minor) (Wardship: Medical Treatment) I. Introduction Judgment: House of Lords Re T (A Minor) (Wardship: Medical Treatment) 14. Commentary on Re A (Conjoined Twins) I. The Facts of Re A II. The Court of Appeal Decision III. Alghrani LJ"s Judgment IV. Concerns over Rights V. Re A and problems VI. A Relational Approach VII. Applying a Relational Approach to Re A VIII. Conclusion Judgment: Court of Appeal (England and Wales) Re A (Conjoined Twins) Part IV: Children’s Rights and Public Authorities 15. Commentary on R (on the Application of Castle) v Commissioner of Police for the Metropolis I. Introduction II. Interpretation of Section 11 of the Children Act 2004 in Light of Article 3(1) of the Convention on the Rights of the Child III. The Right of Children to Participate in Political Activity IV. Case Narrative/Linguistics V. Interpretation of Section 11 of the Children Act 2004 in the Context of Castle VI. Conclusion Judgment: Divisional Court (England and Wales) R (on the Application of Castle) v Commissioner of Police for the Metropolis 16. Commentary on Collins v Secretary of State for Communities and Local Government I. Introduction II. The Wider Context III. The History of Proceedings in the Collins Case IV. What the Rewritten Judgment does differently Judgment: Court of Appeal (Civil Division) (England and Wales) Collins v Secretary of State for Communities and Local Government 17. Commentary on Government of the RSA & Ors v Grootboom & Ors I. Introduction II. The Grootboom Case III. The Rewritten Judgment IV. Conclusion Judgment: Constitutional Court of South Africa The Government of the Republic of South Africa & Rs v Grootboom & Ors 18. Commentary on Valsamis v Greece I. Introduction II. The Original and Revised Judgments III. A Children"s Rights Dilemma: Respect for a Child"s Beliefs in the Context of their Religious Upbringing IV. The Implications of the Judgment 20 Years On V. Conclusion Judgment: European Court of Human Rights Valsamis v Greece 19. Commentary on R (on the Application of Begum) v Governors of Denbigh High School I. Background to Begum II. The Judicial Decisions III. A Children"s Rights Critique of Begum IV. Conclusion Judgment: House of Lords R (on the Application of Begum) v Head-teacher and Governors of Denbigh High School 20. Commentary on S v Special Educational Needs and Disability Tribunal and Oxfordshire County Council I. Introduction II. Background III. First Instance Determinations IV. The Court of Appeal Judgment V. Developments since S VI. Conclusion Judgment: Court of Appeal (England and Wales) S v Special Educational Needs and Disability Tribunal and Oxfordshire County Council 21. Commentary on Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) I. Introduction II. The Original Decision in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General)13 III. Grover J"s Reimagined Dissent IV. Critique of Grover J"s Reimagined Dissent V. Government Commitment to Change Judgment: Supreme Court of Canada Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) Part V: Children’s Rights and Criminal Justice 22. Commentary on Roper v Simmons I. Legal Background II. The Original Decision III. The Rewritten Judgment Judgment: Supreme Court of the United States Roper v Simmons 23. Commentary on R v JTB I. Doli Incapax and its Abolition II. Facts and Decision III. The Implications of the Decision IV. Lord Arthur"s Rewritten Judgment V. Concluding Comments Judgment: House of Lords R v JTB 24. Commentary on The Prosecutor v Thomas Lubanga Dyilo I. Introduction II. Rewritten Judgment III. International or Non-international? IV. Truth-telling and On the Record Experience V. Victim Participation VI. Expedition and Social Recovery VII. Determining Age VIII. Sexual Violence IX. Interpretation of Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute X. Using Children "to Participate Actively in Hostilities" XI. Concluding Comments Judgment: International Criminal Court The Prosecutor v Thomas Lubanga Dyilo 25. Commentary on Farooq Ahmed v Federation of Pakistan I. Introduction II. Background to the Case III. The Facts and Original Judgment IV. The Children"s Rights Judgment V. Conclusions Judgment: The Supreme Court of Pakistan Farooq Ahmed v Federation of Pakistan 26. Commentary on The Case of John Hudson I. Introduction II. The Emerging Child III. Philosophies of the Time IV. The Criminal Law and Punishment V. Criminal Process VI. The Role of the Judge VII. Postscripts Judgment: The Case of John Hudson: The Old Bailey, London Part VI: Children’s Rights and International Movement 27. Commentary on RCB as Litigation Guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest I. Introduction II. Participation and Separate Representation in Abduction Convention Proceedings III. The Original Judgment in RCB IV. Rewritten Judgment Judgment: High Court of Australia RCB as Litigation Guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest 28. Commentary on Povse v Austria I. The Dispute in Povse II. CJEU Preliminary Reference III. ECtHR Judgment IV. Re-writing the ECtHR Judgment V. Supranational Courts and Children"s Rights Protection Judgment: European Court of Human Rights Povse v Austria 29. Commentary on Case C-34/09 Zambrano v Office national de l'emploi I. Background, Dispute and Preliminary Reference II. The Original Judgment, its Implications and Consequences III. The Re-written Judgment IV. Conclusions Judgment: Court of Justice of the European Union Case C-34/09 Zambrano v Office national de l’emploi 30. Commentary on Antwi and others v Norway I. Facts and Original Judgment II. The Treatment of Children as Extensions of their Parents III. The Rights of the Child IV. Conclusion Judgment: European Court of Human Rights Antwi and others v Norway 31. Commentary on Defence for Children International (DCI) v Belgium I. The Decision: DCI v Belgium II. The Concurring Opinion III. Contextualising the Concurring Opinion Judgment: European Committee of Social Rights Defence for Children International (DCI) v Belgium Index