The Rights of the Child

Front matter

Stockholm Studies in Child Law and Children’s Rights

The Rights of the Child

Rebecca Adami Anna Kaldal Margareta Aspan

PART 1 Legal Challenges Regarding the Rights of the Child

1 Children’s Right to Have Rights — on the Importance of Statutory Rights for Swedish Children Living outside the Country 15 Johanna Schiratzki

A Response to Johanna Schiratzki 32 Sandra Karlsson

2 Child Rights without Substance? — Swedish Public Welfare and the Invisibility of Children in Economic Support Cases 34 Pernilla Leviner and Tim Holappa

A Response to Pernilla Leviner and Tim Holappa 58 Lars Lindblom

3 Children’s Participation in Legal Proceedings — Conditioned by Adult Views of Children’s Capacity and Credibility? 61 Anna Kaldal

A Response to Anna Kaldal 82 Linde Lindkvist

VI

CONTENTS

Societal Unease and the Right to Non-discrimination for Youths with Foreign Background Who Are in Conflict with the Law 84 Katrin Lainpelto

A Response to Katrin Lainpelto 105 Rebecca Adami

Children’s Right to Health(Care) — in Light of Medical Advancements and Developments in Paediatric Care 108

Kavot Zillén

A Response to Kavot Zillén 121

Margareta Aspan

PART 2 Conceptualizing the Rights of the Child: Political, Ethical, and Moral Dimensions 6 Childism — on Adult Resistance to Children’s Rights 127

Rebecca Adami

A Response to Rebecca Adami 148 Katrin Lainpelto

Five Problems with Children’s Participation Rights 151 Linde Lindkvist

A Response to Linde Lindkvist 164 Anna Kaldal

Distributive Justice for Children 166 Lars Lindblom

A Response to Lars Lindblom 180 Pernilla Leviner and Tim Holappa

Article 31 — the Forgotten Right to Cultural Life andthe Arts 184 Margareta Aspan

CONTENTS VII

A Response to Margareta Aspån 200 Kavot Zillén

10 Ethnography of Lived Rights — Methodological and Ethical Considerations When Researching Rights with Children 202

Sandra Karlsson

A Response to Sandra Karlsson 221 Johanna Schiratzki

Index 223

Preface — Contrasting Perspectives on Child Rights

Rebecca Adami

The tensions dealt with in this volume between legal, political, and ethical perspectives on children’s rights foreground limited notions of justice, equality, and non-discrimination of children. The purpose is to set several perspectives in conversation with each other, both in terms of how national law relates to the Convention on the Rights of the Child, crc, and how children’s rights can be developed and understood from a philosophical standpoint. This book is dedicated to students, researchers, and professionals working with children’s rights. The chapters, each of which concludes with a cross-disciplinary response, can be read separately or as a whole, starting with either the contributions from Legal scholarship (Part 1) or the more philosophical discussions on children’s rights and justice (Part 2), depending on one’s field of interest.

This volume addresses legal gaps in the codified ethics of children’s rights, and discusses several of the principles of the crc that require political policy developments on a societal level. The first part of the volume addresses the complexity, critique, and ambiguity of how to interpret and understand children’s rights and the four core principles of the crc,! on different topics and from various angles. Chapter 1 explores ways in which we can understand the right to have rights for Swedish children abroad, prevented from returning to Sweden, and how children’s right to agency and residence, recognized in Swedish law as well as in international human rights, is implemented. Chapter 2 furthers the notion of welfare rights for children in Sweden; legal challenges are analyzed in how underlying assumptions and conditions limit the fulfilment of the right to an adequate standard of living for the most economically vulnerable children. According to the crc, children have participation rights and Chapter 3 discusses limitations of such rights in proceedings in custody cases and child abuse cases in Sweden due to the questioning of children’s competence and credibility. The assumption that children in conflict with the law are treated unbiased in Sweden is problematised through two legal case studies in Chapter 4. Lastly, in terms of children’s right to quality healthcare,

1 The four principles are the right to participation, the best interests of the child, the right to life and development, and the principle of non-discrimination and equality.

X PREFACE — CONTRASTING PERSPECTIVES ON CHILD RIGHTS

Chapter 5 discusses the vulnerable conditions of children as developing to be taken seriously in treatment advancements in paediatric care.

The second part of the volume addresses how we can understand the notions of justice, equality, and non-discrimination when it comes to children, and the role that ethical judgements play in theoretical and methodological studies on children’s human rights. Chapter 6 develops theoretical tools to analyse intersecting prejudice against children including age-based forms of discrimination; Chapter 7 concerns new ways of conceptualizing participation; Chapter 8 seeks to develop a more justice-oriented understanding of children’s human rights during childhood; Chapter 9 adds the problematization of what epistemic justice could mean in terms of children’s right to culture and the arts; and finally, Chapter 10 raises critical reflections on the methodological and ethical considerations in ethnographic research dealing with children in vulnerable situations.

Many of the examples touched upon in the chapters deal with the situation in Sweden, discussing Swedish law and court cases. Sweden can be seen in an international perspective as an interesting case of a welfare democracy in which the social and economic structure is supposed to create a safety net for children in vulnerable situations. Sweden ratified the CRC in 1990 without any reservations, and in January 2020 the convention was incorporated into Swedish law. What this will mean more concretely remains to be seen. Even though Sweden is often described as one of the world’s most child-friendly countries, the challenges when it comes to fulfilling and realizing children’s rights are many. This volume deals with some of them. Although the focus to a large extent is on Sweden, the discussions and findings in this book are of broader interest as the realization of children’s rights entails inherent challenges in any legal system.

This work would not have been possible without the close editorial collaboration that merged different fields of research on children’s rights including law, child and youth studies, and education. We would like to thank two foundation bases in Stockholm — Justitieradet Edvard Cassels stiftelse and Stiftelsen Juridisk Fakultetslitteratur, as well as the Vice Chancellor at Stockholm University for funding workshops and open access costs. Further, we want to extend our thanks to all the contributors in the volume and to language reviewer Peggy Oskarsson. We want to extend a special thanks to Pernilla Leviner, Professor in Public Law and Director of the Stockholm Centre for the Rights of the Child, Faculty of Law, Stockholm University, in her role as General Editor for the Stockholm Studies in Child Law and Children’s Rights for her valuable comments on the manuscript, together with Johanna Schiratzki, Guest Professor in Family Law at Stockholm University. Last, but not least, we wish to extend

PREFACE — CONTRASTING PERSPECTIVES ON CHILD RIGHTS XI our thanks to Laura Lundy, Professor of International Children’s Rights at the School of Education at the Queen’s University of Belfast, and Noam Peleg, Senior Lecturer at the Faculty of Law and Justice, University of New South Wales, for their invaluable international lenses on this work.

Abbreviations

CEDAW

CERD

CFR CRC CRPD ECHR

ECOSOC EU HCCH

HFD

ICCPR

ICESCR

NJA

UDHR UN

Convention on the Elimination of All Forms of Discrimination against Women

International Convention on the Elimination of All Forms of Racial Discrimination

Charter of Fundamental Rights of the European Union

United Nations Convention on the Rights of the Child

Convention on the Rights of Persons with Disabilities

Convention for the Protection of Human Rights and Fundamental Freedoms/ European Convention on Human Rights

United Nations Economic and Social Council

European Union

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children/ the Hague Convention 1996 Högsta fdrvaltningsdomstolen (the Supreme Administrative Court in Sweden)

International Covenant on Civil and Political Rights

International Covenant on Economic, Social and Cultural Rights

Nytt juridiskt arkiv (Periodical publishing of Swedish Supreme Court rulings)

Universal Declaration of Human Rights

United Nations

Notes on Contributors

Rebecca Adami is Associate Professor at the Department of Education, Stockholm University. Adami specializes in human rights studies on women and UN history, cosmopolitanism and ethics, and children’s rights.

Margareta Aspan is Senior Lecturer at the Department of Child and Youth Studies at Stockholm university. Her research focuses on children’s participation, both formal and informal, in school settings and is based in social studies of childhood and ethical theories.

Tim Holappa is PhD candidate of Public Law at the Faculty of Law, Stockholm University. His research interests lie in social welfare law, social rights and children’s rights. His PhD project concerns the realization of the right to housing in Sweden with a focus on families with children.

Anna Kaldal is Professor of Procedural Law at the Faculty of Law, Stockholm University. Kaldal’s research interest is children as victims or witnesses of violence and sexual abuse, their participation in legal proceedings and evaluation of evidence. Kaldal’s research therefore also involves criminal law, family (custody) law and child protection law.

Sandra Karlsson is Senior Lecturer at the Department of Special Education, Stockholm University. Her doctoral thesis is on asylum seeking children’s lived rights and everyday politics. Karlsson’s research interest lies in methodology with children and of exploring how children negotiate social and spatial power relations.

Katrin Lainpelto is Associate Professor of Procedural Law, at the Faculty of Law, Stockholm University. Her research focus on criminal procedural and evidentiary issues conducted within the framework of interdisciplinary collaborations, including methodological issues.

XIV NOTES ON CONTRIBUTORS

Pernilla Leviner is Professor of Public Law at the Faculty of Law, Stockholm University. She is the Director of the Stockholm Centre for the Rights of the Child, Stockholm University, a research centre dealing with child law with a strong focus on interdisciplinary perspectives. Leviner’s research interests lie across the fields of public and family law — more specifically child law and welfare law.

Lars Lindblom is Associate Professor at the Department of Culture and Society, Linköping University. He is Director of the Centre for Applied Ethics at Linköping University. His areas of specialization are political philosophy and applied ethics.

Linde Lindkvist is Associate Professor of human rights studies at the School of Human Rights, University College Stockholm, and Senior Advisor at the Swedish Institute for Human Rights. He specializes in questions of human rights history, the right to religious freedom and children’s rights.

Laura Lundy

is Co-Director of the Centre for Children’s Rights, Professor of Children’s Rights at Queen's University, Belfast and Professor of Law at University College Cork. She is Joint Editor in Chief of the International Journal of Children’s Rights and a qualified barrister at law. Her expertise is on international children’s rights with a particular focus on the implementation of the UN Convention on the Rights of the Child in law and policy, education rights and children’s right to participate in decision-making.

Noam Peleg is Senior Lecturer at the Faculty of Law and Justice, University of New South Wales. His work focuses on international children’s rights law and its intersection with human rights law, childhood studies, and family law. He has published widely in leading journals and edited books, and his book The Child's Right to Development was published by Cambridge University Press in 2019.

Johanna Schiratzki is Guest Professor of Family Law at the Faculty of Law, Stockholm University and Visiting Researcher, Department of Sociology, Stockholm University. Her research concerns legal aspects of the principle of the best interests of the child, and covers numerous issues of child, family and welfare law.

NOTES ON CONTRIBUTORS XV

Kavot Zillén is Associate Professor of Public Law at the Faculty of Law, Stockholm University. She is the deputy director of the Stockholm Centre for the Rights of the Child, Stockholm University. Zillén’s research interests lie primarily in Medical law and human rights in health care settings, in particular the right to health, freedom of religion and protection against discrimination.

Introduction

Children’s Rights from an International Perspective

Laura Lundy

I welcome and commend this important edited collection on the legal and ethical aspects of children’s rights, which brings together scholars from diverse disciplinary backgrounds who have applied their expertise and distinct perspectives to reflect on significant children’s rights issues in Sweden and beyond. Whatever the disciplinary perspective, whatever the children’s rights principles involved, and whichever children are the focus of the analysis, it is always useful in any study of children’s rights to step back and reflect on what makes children’s rights distinctive. Why do or should children have bespoke versions of human rights, and how, if at all, do these rights differ from those of adults?

Children are, of course, humans; at least in theory, children have all the rights that adults enjoy in a range of human rights treaties. From the Universal Declaration on Human Rights (UDHR) to the twin covenants, children fall not only within the definition of ‘human’ or ‘everyone’ but also have additional human rights due to their status as children. Until 1989, these additions were very limited. For example, the UDHR mentions children only briefly, and in each instance pairs them and their entitlements with the adults in their lives: first their mothers (along with whom they are entitled to special care) and then both parents, who are afforded the right to choose an education for their child. The UN Covenant on Economic, Social, and Cultural Rights (CESCR) continues in this vein while adding a bundle of extra protections from economic and social exploitation (e.g. ‘Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law’, Article 10). In contrast, the UN Covenant on Civil and Political Rights (CCPR) barely mentions children other than to provide for their right to a name, nationality, and birth registration.

The adoption of UN Convention on the Rights of the Child (1989) (the ‘crc’ or ‘Convention’) provided global recognition that children would require many more ‘special protections’ if their human rights were to be realized. When I am introducing my masters’ students to children’s rights, I begin with this question: what actually makes children different from adults? Take a minute, I ask, and think about your instinctive reaction to that question. Most people respond by suggesting that children are more vulnerable to harm or are dependent on adults. For the most part, adults define children in terms of a deficit — children lack what adults have. It is important to understand these typical conceptions of children, as they are often the very same as those held by the

© LAURA LUNDY, 2023 | DOI:10.1163/9789004511163_002 This is an open access chapter distributed under the terms of the CC-BY-NC 4.0 license.

4 LUNDY adults who drafted the Convention. The content of the CRC reflects this fact; a huge portion of this convention is dedicated either to protecting children from harm or securing their development.

The preamble of the crc, although not legally binding, provides an initial insight into the assumptions that underpin the drafters’ rationale and conceptualization of children. The text is overtly paternalistic, asserting for example that childhood is entitled to ‘special care and assistance’, and reiterating the statement of the 1929 Declaration of the Rights of the Child: ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’. However, while the preamble emphasizes protection and care, the content of the CRC is much more comprehensive, capturing not only a wide range of new protections from harm but also a largely untouched set of civil and political rights, including the right to freedom of expression, privacy, association, and assembly. I say largely untouched, but there is a significant omission — the right to participate in political life, including the right to vote, is omitted — and this issue is now receiving much attention. That said, the inclusion of all the other civil and political rights underscores the fact that children are also entitled to these rights, a fact that is often misunderstood or misrepresented in practice, with child activists and human rights defenders experiencing a range of restrictions that would not be imposed on adults.

The crc has received much criticism, and rightly so. Looking at the Convention through the lenses of feminism or post-colonialism, for example, will expose some of its flaws. However, it has also been accused of being ‘adultist’ — a criticism that one might not expect about a treaty designed to enhance human rights protections for children. One example of this is the fact that Article 2, the cRc’s comprehensive discrimination provision, does not include ‘age’ as a protected category. Many of us who work in the field of children’s rights are fully aware of the justified criticisms of this politically negotiated compromise, yet we continue to promote its implementation. Why? For others in the field and for me, the crc affords children all (or at least nearly all) of the human rights given to adults, but children also receive additional protections that recognize their lived realities: they are all still developing; some may be more vulnerable to harm; and crucially, all will be living in contexts (families) where others will and indeed often must make decisions for them. All of these factors mean that for children to enjoy the fundamentals of human rights (dignity, equality, and respect for their worth as a human being), they need bespoke versions of human rights. These are not

CHILDREN’S RIGHTS FROM AN INTERNATIONAL PERSPECTIVE 5 different rights but articulations of the same human rights for the distinctive social context of childhood.

Article 12, which provides for the child’s right to have their views sought and given due weight in accordance with their age and maturity, is an interesting case in point. Some have argued that it detracts from children’s human rights, limiting their right to freedom of expression through the emphasis on their age and maturity. I, on the other hand, struggle to see how that is possible when Article 13 means that children continue to have the same right to freedom of expression as adults. For me, Article 12 gives an additional entitlement that recognizes the reality — that many decisions are made about and for children, and that this places an onus on those tasked with making those decisions to ensure that children’s views are sought and taken seriously. Adults have no equivalent right because there is an assumption (probably also partially erroneous) that adults always get to make decisions for themselves.

I asked you to think about what makes children different from adults. When we ask children the same question, as I have done many times, their answers are usually very different. They see adults as having a deficit as well: adults have no time to play, have too much responsibility, are too worried or serious. This difference in perception is also important, as there is no doubting the irony of children having a treaty written for them and not together with them, and there is also no doubt that the crc might have been different (although not perhaps as much as is sometimes suggested) had children been involved in drafting it. Would children have been less paternalistic? Probably not. Would they have added civil and political rights? Probably yes in respect of the right to vote. However, the reality is not that children do not enjoy the ‘participatory’ civil and political rights of adults but that the additional ‘protection’ rights afforded to children are sometimes used by adults to limit children’s autonomy, and often in ways that are not necessary or proportionate. This is not a failure of the Convention but of public understanding and implementation — a reality that makes the study of children’s rights on which you are about to embark so crucial.

When I asked you to think about how children differ from adults, what child did you have in mind? What age, gender, ethnicity? Clearly a baby differs significantly from an adult compared to a 17-year-old. Understanding and implementing children’s rights is always child-, decision-, and context-specific. A litmus test for me in terms of how we treat children is always to ask: would we do this to an adult? If we would not, the next question is always to probe why we are prepared to treat a child that way, and whether such treatment can be

6 LUNDY justified within the overall human rights ambition of respecting the child’s dignity, affording equality, and ensuring respect for the worth of the individual human being. That can rarely be achieved without seeking the views of children themselves.

A Children’s Rights Dilemma — Paternalism versus Autonomy

Noam Peleg

The questions of paternalism and autonomy, and the challenges of balancing the two when it comes to children and their opportunities to exercise their rights, are two of the main questions that underpin this book.

Paternalism is invoked regularly in children’s rights scholarship, explicitly but more often inexplicitly.1 However, paternalism has different meanings that should be carefully unpacked before analysing how this phenomenon operates with, for, and mainly against children. One definition, which is used in non-children (rights)-specific literature, suggests that paternalism is an act of limiting one’s general autonomy and agency to make decisions as a means to promote one’s welfare.” A different definition indicates that paternalism is an act of overriding one’s decision in the name of their safety, wellbeing, or other similar harm prevention objectives.’ Both definitions portray paternalism as a harm prevention measure, based on the underpinning logic that one’s autonomy should be limited in the name of protection. The first definition is broader, as it justifies overriding one’s agency and autonomy to make decisions altogether, rather than nullifying a specific decision that can result in harm, as the second definition seems to suggest. Nonetheless, these definitions both work in the same way — they override individual autonomy based on an abstract risk-assessment exercise, which can be (and often is) a euphemism for the subjective, value-driven assessment of one’s general capacity to make, or to be entitled to make, a decision about one’s own life or to exercise one’s agency.

One of the key arguments against paternalism is the liberal claim that individuals are in the best position to judge their own interests and values through their personal process of reasoning, and therefore they should have the freedom to decide and face the consequences of their choices. This approach

1 Freeman, M., Magna Carta for Children: Rethinking Children’s Rights (Cambridge: Cambridge University Press, 2020): 31-45.

2 Düber, D.,‘The Concept of Paternalism’ In Schramme, T. (Ed.) New Perspectives on Paternalism and Health Care (Berlin: Springer Verlag, 2015): 31-45.

3 Shiffrin, S.V., ‘Paternalism, Unconscionability Doctrine, and Accommodation’, Philosophy & Public Affairs 29, no. 3 (2000): 205-250, 205, 213.

© NOAM PELEG, 2023 | DOI:10.1163/9789004511163_003 This is an open access chapter distributed under the terms of the CC-BY-NC 4.0 license.

8 PELEG values the authority of a hypothetical ‘competent adult’ over a paternalistic prioritization of assumed wellbeing. However, for children, this line of reasoning requires some modifications, irrespective of the rights theory that we prefer, as neither the will theory nor the interests theory sufficiently account for children’s vulnerability.*

Vulnerability is often used as a justification for paternalism in general, and this is certainly true for children, as one of the traditional justifications for protecting children’s rights is due to their ‘inherent’ vulnerability. Moreover, according to the UN Committee on the Rights of the Child, some children are even ‘more vulnerable’ than others: ‘An important element to consider is the child’s situation of vulnerability, such as disability, belonging to a minority group, being a refugee or asylum seeker, victim of abuse, living in a street situation, etc'.? In General Comment 13, the Committee lists additional situations of enhanced or increased vulnerability, including indigeneity, sexual orientation or gender identity, chronic illness, low socioeconomic status, and children affected by conflicts or natural disasters, among other characteristics.®

When it comes to international children’s rights law, Article 5 of the 1989 UN Convention on the Rights of the Child (‘the Convention’ or ‘cRc’) coins the Evolving Capacities principle, which accords children the space to exercise their autonomy and rights based on their evolving capacities, as assessed and determined by adults.” As such, the CRC seems to be an embodiment of the second definition of paternalism. The story that the Convention tells about children’s autonomy and capacities is more complex however, as will be discussed below.

Back in the 1970s, the child liberationist argued that there is no justification for paternalistic approaches towards children. People like Richard Farson (1974) and John Holt (1974) argued that the law should not differentiate between children and adults, and that all human beings, irrespective of age, are best positioned to make decisions about their own lives.® According to these views,

4 Tobin, J., ‘Justifying Children’s Rights, International Journal of Children’s Rights 21 (2013): 395-441.

5 United Nations Committee on the Rights of the Child. General Comment No. 14 (2013) on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (Art. 3, para. 1). CRC/C/GC/14 (29 May 2013), para. 75.

6 United Nations Committee on the Rights of the Child. General Comment No. 13 (201) The Right of the Child to Freedom from All Forms of Violence. CRC/C/GC/13 (18 April 2011), para. 72(g).

7 Daly, A, ‘Assessing Children’s Capacities’, International Journal of Children’s Rights 28 (2020): 471-499.

8 Farson, R., Birthright (New York: Macmillan Publishing, 1974); Holt, J., Escape from Childhood (London: Penguin Books, 1974).

A CHILDREN’S RIGHTS DILEMMA — PATERNALISM VERSUS AUTONOMY 9 paternalistic laws directed at children, allegedly put in place to protect them from themselves (and often from their parents), should be abolished in favour of full liberation and full respect for children’s autonomy. This approach did not leave a mark in the literature and gained little traction in practice. Joel Feinberg wrote in opposition to this trend and, having tried to square the circle, suggested that children’s autonomy should not be overridden unless there is an immediate and concrete threat to their physical safety or overall wellbeing. In addition, if the child’s autonomy is restricted or fully ignored due to these considerations, then it should not be seen as a permanent state of affairs but as a temporary measure that aims to ensure long-term ability to exercise autonomy.?

In other words, Feinberg’s paternalism is not based on one’s permanent character, but rather on the paternalists’ ability and duty when it comes to the parent-child relationship, as a means to prevent concrete harm from taking place. Freeman suggests that this approach, which he refers to as ‘limited paternalism’, permits interference with a child’s autonomy where the child’s decision would result in death and would thus deny her any future.!° The weight of this argument depends in turn on what the paternalist considers as ‘harm’. Another possible point of view is to ask: what room for mistakes do adults provide for children? An example here would be when a child makes a decision that will not necessarily result in immediate pain or death, but about which an adult — usually a parent — will be displeased.

The tension between children’s rights as an emancipatory project and the child, whose image — including under the Convention — is of a human being lacking capacity, or as someone who gradually acquires capacities over the course of childhood, is apparent. Article 12 of the Convention is the embodiment of this tension and the best example of the Convention’s attempt to reconcile it. On the one hand, Article 12 respects the child’s right to participate in decisions concerning her life, and it is often celebrated as one of the biggest achievements of the Convention in moving children’s social and legal positionalities from subject to object. But on the other hand, Article 12 gives adults the power to decide whether and how children will participate, and how much weight a child’s voice should be given, by enabling adults to qualify children as immature and consequently silencing them. Thus, this requires adults who

9 Feinberg, J., ‘The Child's Right to an Open Future’. In Aiken, W., and LaFollette, H. (Eds.), Whose Child? (New Jersey: Rowman and Littlefield, 1980): 124-153. 10 Freeman, M, (2020), 202.

10 PELEG are willing to create a structure that enables children to participate to begin with." In that sense, even the seemingly liberating Article 12 leaves adults in charge and in control of children’s lives. Moreover, it leaves adults in charge of children’s opportunity to express their opinion, which is not a harmful exercise as such, as paternalism is often invoked against the imaginary or concrete fear of physical harm. It is true that for some children, even the exercise of participation can be triggering or harmful; in these cases, the participation method should be carefully designed to prevent or minimize this harm. Still, Article 12 gives adults much more power than this.

Article 5 and the Evolving Capacities principle, which was mentioned earlier, also condition children’s autonomy to their capacities, as assessed by adults. Reading Article 5 in this way raises a question about the image and positionality of babies and toddlers as rights holders under the Convention, as they are seen as lacking (in capacities). John Eekelaar accepts the latter description, suggesting that children’s rights aim ‘to bring the child to the threshold of adulthood with the maximum opportunities to form and pursue life-goals which reflect as closely as possible an autonomous choice’!

The Convention’s story is more complicated, however, as Article 6(2) establishes the right of the child to develop. This right includes the development of capabilities that seem to be prerequisites for exercising rights. However, this reading of the Convention is premised on a model of deficiency, in which children are seen as ‘not-adults’ and therefore are lacking in the assumed ability to exercise autonomy. However, looking at Article 6 as an opportunity to remedy or counter the paternalistic work of the Convention and how such work can be mitigated can lead to an alternative interpretation, where the right to development is understood as an emancipatory right.!3