This chapter highlights two distinct perspectives – international and domestic – on the judicial application of the Convention on the Rights of the Child (the Convention). The international perspective is framed by reference to article 4 of the Convention and the maximalist approach taken by the Committee on the Rights of the Child. The domestic perspective is conceptualised by reference to the direct and indirect application of the Convention as permitted by the reception rules in monist, dualist, and hybrid legal systems. The chapter argues that the international and domestic perspectives on the judicial application of the Convention differ on account of the different institutional positions of the bodies that control them (the Committee vs the domestic courts). The maximalist international position promoted by the Committee is often unavailable to the domestic courts, although it may be a potential inspiration to them. Canvassing these distinct perspectives provides the context for a better understanding of the limitations in the domestic courts’ engagement with the Convention, detailed in the subsequent chapters.

This chapter analyses the indirect judicial application of the Convention on the Rights of the Child (the Convention) in Australia, which is a federal state of dualist tradition. The chapter demonstrates the vulnerability of the Convention in a system of parliamentary supremacy where the Convention is not legislatively incorporated and where the Parliament can make laws contrary to it. In this context, the traditional methods of engaging with the Convention have yielded limited results where there was tension with the domestic law, but were more impactful when there was convergence between the two sets of norms, as seen in the family law context. The Convention is also weakened by the absence of a federal human rights statute. The case study of the application of the Convention by the Supreme Court of Victoria shows that human rights statutes that contain child-specific provisions facilitate the judicial application of the Convention. The chapter also illustrates the creativity of the courts, which occasionally engaged with the Convention in sui generis ways, not explicitly acknowledged as formal methods of engagement.

Drawing from the case studies on the judicial application of the Convention on the Rights of the Child (the Convention) in France, Australia, South Africa, and the United Kingdom, this chapter argues that albeit fundamentally different in form, the direct and the indirect application of the Convention, respectively, produce similar effects. Both permit a meaningful engagement with the Convention and the development of child-sensitive reasoning. The chapter highlights that alongside the traditional methods of engagement with the Convention, courts have applied it in a sui generis manner. This demonstrates that the traditional reception rules are unable to capture the diversity of courts’ interaction with the Convention. The chapter discusses the factors that influence the courts’ application of the Convention and highlights the importance of the domestic structure of reception for the judicial application of the Convention. The chapter also concludes that article 3(1) of the Convention has been a favourite of the courts, who see it as a rich repository of legal principles and standards that allow them to justify a distinct legal treatment for children.

The chapter argues that the domestic judicial application of the Convention on the Rights of the Child (the Convention) is important and in need of systematic attention, especially in light of the Convention’s novelty and special features. The chapter shows that in the absence of prior systematic comparative international studies, it remains relevant to study the judicial application of the Convention through the lens of the formal domestic rules that inform the reception of the Convention in monist, dualist, and hybrid legal systems. The chapter also argues that it is not only these formal factors that affect the judicial application of the Convention, but also the domestic structure of reception wherein the Convention is received. The chapter further explains the selection of a heterogenous sample of jurisdictions, consisting of France, Australia, South Africa, and the United Kingdom, and the use of a comparative international law perspective as a theoretical framework for the book.

This chapter analyses the indirect judicial application of the Convention on the Rights of the Child (the Convention) in the United Kingdom, a dualist legal system where the Convention has not been fully incorporated through legislation. Although the courts have somewhat engaged with the Convention through the traditional methods (statutory interpretation and the development of the common law), the Convention has been given effect overwhelmingly in the context of the Human Rights Act 1998 (the HRA), and implicitly of the European Convention on Human Rights and Fundamental Freedoms 1951 (the ECHR). The joint application of the Convention with the HRA–ECHR tandem has been both a facilitating and an inhibiting factor in the judicial effect of the former. Like courts in other jurisdictions, UK courts have also applied the Convention in sui generis ways, diversifying thus the opportunities for its usage. The overlap between the Convention and other legal standards makes the assessment of its impact difficult, but it is clear that the application of the Convention is associated with a more child-sensitive judicial reasoning.

The chapter analyses the judicial application of the Convention on the Rights of the Child (the Convention) in South Africa, which is a hybrid legal system with both monist and dualist features. The largely successful judicial application of the Convention has been facilitated by the country’s constitution, which contains a provision on children’s rights and generous provisions regarding the judicial application of international treaties. The chapter shows that courts favour the application of the Convention as an interpretation tool for the children’s rights clause in the Constitution, but they neglect other possibilities of engagement, such as self-execution or statutory interpretation. This has resulted in lost opportunities to give judicial effect to the Convention. Courts also engage in sui generis forms of application, which has diversified the means of its application. The impact of the Convention is sometimes difficult to discern because of its overlap with domestic instruments. Nonetheless, the Convention has demonstrated its value added when gaps were found in the domestic law, although most often the influence of the Convention has been subtle and diffuse.

This chapter analyses the direct application of the Convention on the Rights of the Child (the Convention) by the Court of Cassation and the Council of State in France, a monist state that has not passed legislation to incorporate or transform the Convention domestically. The chapter highlights the historical contentiousness of the direct application of the Convention, the different approaches taken by the two supreme courts, and the positive impact of the direct application of the Convention once this became more widely accepted. The chapter argues that the direct application of Convention articles gives them a quasi-constitutional status, and permits their mainstreaming into decision-making. It also shows that the direct application of the Convention, and especially of its article 3(1), has added value to judicial reasoning in relation to children. The chapter demonstrates that, contrary to other views, the direct application of the Convention by courts depends to a large extent on factors independent of it rather than on its intrinsic features, such as the alleged weak remedial framework, the generality of its terms, or the formulation of its articles.

In 2012, a German district court in the city of Cologne decided that male circumcision for non-therapeutical reasons amounted to criminal assault that could not be justified by parental consent. Over a period of several months, between the decision and the drafting of the amending legislation, the German public and academy became embroiled in a remarkably heated and emotional debate about the future of the practice. But this time, the resentment did not just appear in the notorious online world but became woven into medical and legal arguments against circumcision. Even though critics of circumcision were eager to stress that their concerns were children’s rights alone, the Cologne debate sent a signal to Germany’s Jews that the law could easily turn them into strangers again. Through a close reading of this legal controversy, this chapter examines how contemporary secular legal responses to religious infant male circumcision reproduce Christian ambivalence and rely on a supersessionary logic that renders Jews as stuck in a backward past, while constituting the majoritarian secularised Christian culture as a superior locus of equality and progress.

This is the first of two chapters concerned with the Jewish practice of infant male circumcision. In this chapter, I trace the history of circumcision as a trope for Jewish difference in European Christian thought and consider its symbolic role in debates about the legal equality of Jews. Christian thinkers spent much time pondering Jewish circumcision and what it told them about the supposedly ‘carnal’, particularistic, and anachronistic nature of Jews. Apart from constituting a trope for what differentiated Jews from Christians, the bodily sign eventually also became enmeshed in discussions about the possibility of Jewish emancipation where it offered a site to debate the fitness of Jews to become citizens. However, regardless of how much Christians disdained circumcision, they mostly respected the Jewish right to circumcise and due to a curious twist of history, some Christian societies eventually even embraced circumcision themselves. More recently, circumcision has emerged as a human rights issue and I explore the role of Christian ambivalence in contemporary calls for a ban on the practice in the name of children’s rights and gender equality.

This chapter introduces the theoretical literature concerning children’s rights. Although there is now widespread international agreement that children possess human rights, the theoretical underpinning of those rights is often said to be under-theorised. Further, sceptics have questioned whether children’s rights undermine their interests and the central place of the family in protecting those interests. This chapter addresses these debates, considering the theoretical basis on which children hold rights, the content of those rights and the connection between moral rights and international human rights law.

The question of how far the law should intervene in family life to protect children’s rights is controversial. The United Nations Convention on the Rights of the Child recognises the primary responsibility of parents for their children and the value to children of being brought up in a family that nurtures and protects them. Nevertheless, the reverence given to the place of family also comes with risks to children. While parents are usually best placed to protect their children’s interests, the privacy of family life allows parents to tyrannise, abuse and neglect their children. Legal and political responses are often strongly influenced by notions of family privacy and parental autonomy that discourage interference with family life and instead promote the authority of parents, leaving children vulnerable in the private sphere of the family. This chapter explores the ambivalent current law on parental responsibilities and the rights of children. This is best seen in the law on physical punishment, where parental freedom is prioritised despite substantial evidence of its harmful effects and recognition of children’s right to equal protection from assault in international law.

This concluding chapter draws together themes from across the book and assesses the current health of children’s rights. It opens by considering the extent to which parents’ interests hamper the law’s development of children’s rights. It proceeds to assess the fragmented manner in which children are constructed by law and policy to fulfil adult perceptions of their needs. The difficulties posed by society’s negative attitudes towards young people and their exclusion from the political process are also examined. The chapter concludes by arguing that these problems should be addressed by adopting a more vigorous rights-based perspective and assessing the risks that the current climate of rights scepticism pose for the future of children’s rights.

This chapter considers the role of rights in decisions concerning the health of children who are not yet competent to consent to their own medical treatment. The medical treatment of children is particularly contentious in cases involving disagreement between parents and medical professionals over the provision of life-sustaining treatment. These fraught disputes have often become a site of disagreement over the extent of parental freedom and state intervention in determining children’s best interests. Despite the obvious implications for the child’s own rights to life and bodily integrity, those rights rarely play an overt role in such decisions. A further area of contention is in the extent of parental discretion to consent to non-therapeutic intervention, such as tissue donation or circumcision. These decisions are again treated primarily as a matter of parental discretion; in practice, again the law is content to tolerate significant intervention without adequate protection for the child’s own rights.

This chapter assesses the extent to which children’s rights are protected in domestic law. The heart of the problem for children’s rights in domestic law is that those international rights that are designed for children are not directly enforceable, while those rights that are directly enforceable have not been written for children. Further, the central place of the welfare principle in domestic child law has often been interpreted as being in conflict with a rights-based approach to children. Nevertheless, the Human Rights Act 1998 has been the vehicle for some real advances in protecting children, especially through the use of international instruments in interpreting its rights to be more effective for children. In the political sphere, children’s rights have gained greater influence, especially through the enhanced role of the Children’s Commissioner. This chapter assesses these developments and analyses the continuing weaknesses in the protection for children’s rights in law and policy.

Chapter 3 argues that the Lockean proviso entails two further conclusions embraced by social anarchists. First the chapter argues that, contrary to what right-libertarians typically maintain, the Lockean proviso implies that no one owns any natural resources. This is because any appropriation of such resources would leave others worse off in a way that the proviso does not allow. By contrast, the chapter argues that the proviso is necessarily satisfied when it comes to each agent’s own body ‒ at least, if self-ownership is interpreted in the way proposed in Chapter 1. Thus, while people do not own any external resources, they can easily come to own themselves via acts of self-appropriation. The chapter then goes on to defend at greater length the interpretation of the Lockean proviso proposed in Chapter 1. Finally, it concludes by discussing what the proposed position implies vis-à-vis the rights of children.