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Redefining the child’s right to identity

August 2004
International Journal of Law Policy and the Family 18(2)

August 2004
18(2)

DOI:10.1093/lawfam/18.2.147

Authors:

Ben-Gurion University of the Negev

This article proposes redefining the child's right to identity as a right to state protection of ties meaningful to the child. Its main arguments are, in essence: (1) Such a right should protect the development of an authentic individual by seeking the child's wishes and feelings concerning their ties. (2) Protection of an individualized identity necessitates exploration of culture as a context of personal meaning which cannot be equated with cultural sensitivity as commonly perceived. (3) Consequently, preferential protection of the child's ties to a minority culture or to individuals affiliated to it is seen as violating the proposed right. (4) The UN Convention on the Rights of the Child reaffirms commitment to a dynamic child-constructed identity. (5) Protection of the proposed right reflects, protects and creates a social reality in which children's lives may be imbued with personal meaning. A discussion of two English cases demonstrates these arguments.

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International Journal of Law, Policy and the Family 18, (2004), 147–177

International Journal of Law, Policy and the Family, Vol. 18, No. 2,

* School of Social Work and Faculty of Law, Bar Ilan University, Israel. An earlier version of this

article was initially presented as part of the Research Seminar Series of the Family Studies Research

Centre at Cardiff University on 27 February 2002. The research for it began while the author was a

Research Fellow at Queen Mary College, University of London. I am very grateful to Professor

Gillian Douglas, Mr John Eekelaar, Professor Michael Freeman, Professor Nigel Lowe, Professor

Mervyn Murch, Dr Rhona Shuz, and an anonymous reviewer for their helpful comments to earlier

versions of this article. I also thank Professor Smadar Lavie for referring me to Bruch (2001).

REDEFINING THE CHILD’S RIGHT TO

IDENTITY

YA’IR RONEN*

ABSTRACT

This article proposes redeﬁning the child’s right to identity as a right to state

protection of ties meaningful to the child. Its main arguments are, in essence:

(1) Such a right should protect the development of an authentic individual by

seeking the child’s wishes and feelings concerning their ties. (2) Protection of

an individualized identity necessitates exploration of culture as a context of

personal meaning which cannot be equated with cultural sensitivity as

commonly perceived. (3) Consequently, preferential protection of the child’s

ties to a minority culture or to individuals afﬁliated to it is seen as violating the

proposed right. (4) The UN Convention on the Rights of the Child reafﬁrms

commitment to a dynamic child-constructed identity. (5) Protection of the

proposed right reﬂects, protects and creates a social reality in which children’s

lives may be imbued with personal meaning. A discussion of two English cases

demonstrates these arguments.

1. INTRODUCTION

This article maintains that the state should have a positive duty to

safeguard the child’s right to identity as a right to protection of ties

meaningful to the child .1It suggests that these ties delineate the child’s

identity. These are primarily ties to the human world, but they can also

be ties to an animal, such as a dog or a horse, to an inanimate object,

such as a book or a tree, or to a geographic place such as a village or a

physical home.

It begins with an exposition of the main arguments and focus. This

introduction is followed by a discussion of authenticity, of the child’s

legally neglected need for a meaningful existence and of culture as a

context of personal meaning. This discussion forms the rationale for the

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proposed deﬁnition of the right to identity. A critical discussion of the

right to identity in international law follows, clarifying and exemplifying

the need to redeﬁne the right in positive law. There then follows the

essence of the stories of two children as told by the Lord Justices of the

English Court of Appeal in two cases which exemplify some of the

dilemmas related to identity that are discussed in the article. An analysis

of the two court cases presented follows and ends with a concluding

note exploring the key implications of the proposed redeﬁnition of the

right.

The main arguments of this article are:

1. The child’s right to identity derivative of their human dignity

should protect the development of an authentic self-actualizing individ-

ual which maintains psychological ties, primarily ties of interdepen-

dence to signiﬁcant others. The state should protect a right to an

individualized identity by seeking the child’s wishes and feelings

concerning their ties. In this way, a structured element of caution is

introduced into child law policy and practice.

2. Protection of an individualized identity necessitates exploration of

culture as a context of personal meaning and is founded on empathic

understanding of an individual child’s experience. Such respect cannot

be equated with what is commonly perceived as cultural sensitivity.

3. Consequently, preferential protection of the child’s ties to a

minority culture or to individuals afﬁliated to that culture is seen as

violating the right to identity. Such preferential protection signifying a

politicized selectivity of compassion is an inappropriate tool to correct

or counteract prejudices against such a minority culture.

4. Neither the UN Convention on the Rights of the Child (UNCRC)

nor the European Convention for the Protection of Human Rights and

Fundamental Freedoms (ECPHRFF) explicitly uphold the right to

identity as deﬁned here. The child’s right to guidance formulated in

Article 5 of the UNCRC and their right to free expression and right to

participation formulated respectively in Articles 12 and 13 to the

UNCRC, as interrelated, implicitly reafﬁrm the commitment of inter-

national law to a dynamic child-constructed identity.

5. Legal protection of the proposed right not only reﬂects and

protects a social reality in which children’s lives may be imbued with

personal meaning. It also creates such a reality through law’s trans-

formative educational impact.

The focus of this discussion is not any national law but rather

international instruments, primarily the UNCRC. Though not incor-

porated into statute law in most jurisdictions (including England), the

UNCRC is the most authoritative legal text on children in international

law (Van Bueren, 1995:1–25). English Courts, like many other domestic

courts worldwide, have recognized that domestic administrative and

legal procedures absorb the UNCRC’s expectations (Rosenblatt, 2003)

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and therefore its minimalist and sometimes implicit references to

identity are seen as deserving primary attention. The ECPHRFF, clearly

bearing on the two cases discussed here, is also discussed.

Following cultural anthropologist Clifford Geertz (1983: 218), posi-

tive law, such as these two Conventions and case law, which should be

guided by their imperatives, is seen here not only as reﬂecting social

norms but also as constructing them through the articulation and

enforcement of legal norms. Thus, law may inﬂuence both individual

and community identity (Lukinsky, 1987; Post, 1995) through its

transformation of local cultures (An-Na’im, 1994). Therefore, law is

seen as a tool for the promotion of social change despite the fact that

cultural values inﬂuence its implementation (Alston, 1994: 23) and

irrespective of the fact that lawmakers sometimes deny its social impact.

2. THE RATIONALE FOR REDEFINING THE RIGHT TO IDENTITY

A. Facilitating the Development of an Authentic Self-actualizing Individual

Increasingly, the child is seen as a human being worthy of the protection

of a human rights regime not only by international law but also by

societies at large (eg Van Bueren, 1995: 6). Children are now often

portrayed both in legal and in social science discourse as having a

potential for self-actualization or self-realization (eg Rogers, 1989;

Eekelaar, 1994: 49). Such a potential may be seen as enshrined within

the concept of human dignity and justifying the attribution of human

rights (eg Taylor, 1994: 41–2; Rockefeller, 1994: 87; Erbele, 2002: 256).

However, current legal protection of the child’s right to human

dignity does not guarantee protection of an individualized identity.

Taylor (1991: 32–5) explains that the notion of individualized identity

draws support from an ideal of authenticity, in the sense of being true to

oneself and to one’s particular way of being. It implies that if you are not

true to yourself you miss what being human means for yourself.

The understanding of identity proposed here departs from the

classical substantive, essentialist, conception of identity which empha-

sizes static, unchanging elements of identity (Taylor, 1991; Taylor, 1994;

Lavie and Swedenberg, 1996:11). Identity should not be seen as

developing in a vacuum, but rather always through dialogue and

sometimes struggles with signiﬁcant others – those persons who matter

to the individual constructing their identity (Taylor, 1994; Eekelaar,

1994: 51; Wilson, 1997: 281; Eekelaar, 2004). Even as the individual

outgrows some of these others, the internal dialogue with them

continues throughout life and a contribution to the formation of an

evolving identity in early childhood continues indeﬁnitely (eg Taylor,

1994). Taylor (1994) writes of two spheres of recognition of identity.

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First, the intimate sphere of recognizing an identity that is formed in

dialogue and struggle with signiﬁcant others, and second, a public

sphere where a politics of recognition may protect the individual’s

identity. In adopting such a conception of identity, it is not difﬁcult to

accept the assertion of Lavie, Swedenberg and their colleagues that

there is no objective immutable link between identity and a speciﬁc

place such as, say, a place of birth (Lavie and Swedenburg, 1996: esp. 1,

2). An assumption of such a link is inherent in an abstract, decontexual-

ized, understanding of identity rejected here.

Alongside the child’s need ‘to become’, to develop and change, to

fulﬁl dreams and plans, the need, in An-Na’im’s words, ‘to be different

from others’ (2002: 1–2) there is another need. This is often neglected

by advocates of children’s rights, though it is well embedded in social

science literature. This is the child’s need ‘to be’, to be his/her

authentic self and to be recognized as ‘somebody’ when simply being

that self (Feuerstein, 1982: 44–5; Feuerstein, 1984; Engel and Munger,

1996: esp. 48; Bilsky, 1997: 148–9; Deng, 2002:196). This ensures the

child’s psychological survival.

A children’s rights regime should ideally be responsive to the

complementing needs ‘to be’ and the need ‘to become’. The granting

of a right to autonomy, responding to the child’s need ‘to become’ and

overcoming adult paternalism, is often perceived as the most advanced

and most problematic stage in the evolution of child law (eg Franklin,

1986: 27–38; Van Bueren, 1995: 15). A child who has not been

empowered to develop a unique personal identity may see themselves

simply in terms of their biological needs. Such a child may become

indifferent to their human rights or misuse them in a reductionist way to

satisfy only momentary desires and impulses (Feuerstein, 1982: 44–5)

totally divorced from their noble purposes as envisioned and described

in human rights theory and in case law (eg Cohn, 1991: 19–21; Eekelaar,

1994: 51).

Through an evolutionary process of choice between different identiﬁ-

cations and values, the child constantly creates and recreates their own

identity until, hopefully, it crystallizes in adulthood (Van Praagh, 1997:

366; Van Praagh and Wilson, 1997: 282; Van Praagh, 1999b: 1348).

Classical portrayals of such evolutionary processes of changing identiﬁ-

cations are found in the lives of Nelson Mandela and Mahatma Gandhi

(Erikson, 1970; Mandela, 1994; Gandhi, 2001). Both individuals

reached the stage of courageous commitment to a cultural identity

despised and belittled by mainstream society only through lengthy

processes of personal growth in their personal alliances and identiﬁ-

cations. Both rejected sectarian conceptions of their identity often

imposed or suggested by social and legal norms. Both allowed them-

selves to be themselves despite pressures to conform and to adopt a

conventional identity.

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B. Does Legal Recognition of an Individualized Identity Imply a Traditional

Liberal Individualist Ethos?

A politics of equal dignity leads to the recognition of the individual’s

eligibility to a uniform set of rights and immunities. This article

proposes that a politics of difference or identity is needed which would

call for the recognition of a human being’s unique individualized

identity, and which sees the suppression of individual distinctness by a

dominant or majority identity as the cardinal sin against authenticity, to

use Taylor’s (1994: 38) words. In her seminal essay, Carol Gilligan

(1982) can be understood as developing this charge in relation to

silencing a distinct, caring voice, which has been derogatorily con-

structed as a feminine voice by mainstream academic and popular

discourse. I argue, using Taylor’s wording again, that Gilligan can be

understood as showing how mainstream discourse presenting an

atomistic image of the ideal human being, ‘sins’ against both boys and

girls. Such a model of humanness, often underlying public and legal

discourse, denies or ignores a central psychological insight: human

beings are naturally interdependent rather than independent (Gilli-

gan, 1982: 2, 4, 74; Cohn, 1991: 19, 21; Freeman, 1997: 73;). Minow (eg

1986: esp. 15, 17–18, 24) utilizes this insight in articulating a theory of

children’s rights, departing from a traditional ethos of liberal individu-

alism in which she emphasizes the centrality of the child’s right to the

protection of their relationships with signiﬁcant others founded on an

ethos of interdependence. Universal protection of relationships with

signiﬁcant others is in fact protection of the distinctness and the

uniqueness in the individual. In this context, the universal and the

particular converge.

Protecting the child’s deﬁnition of their identity, ie protecting a

child-constructed identity, may be construed as derivative of a commit-

ment to their human dignity (Taylor, 1994; Raz, 1998: 200) despite the

fact that human dignity politics has not yet been utilized for this

purpose: As Taylor (1994: 39) explains this is an instance of a shift

‘where a new understanding of the human social condition imparts a

radically new meaning to an old principle’. To conclude, legal

recognition of an individualized identity does not imply endorsement of

a traditional liberal individualist ethos, as one might initially assume. It

is founded on an alternative ethos of interdependence.2

C. Is Public Recognition of the Child’s Individualized Identity Necessary in the

Children’s Rights Era?

Society often tends to see the child as property of the state or parents, to

be moulded in another’s image (eg Slaughter, 2000). Our recognition

of the child as an individual, whose authentic identity is worthy of

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respect, is meant to reafﬁrm our commitment to their unique human-

ness and counteracts such a tendency. One may doubt whether such

commitment needs reafﬁrmation in an era in which – from the

perspective of international law – children are seen as eligible for

human rights. However, it is suggested here that law is only gradually

moving away from serving those in positions of political and economic

power as opposed to others, such as children and ethnic minorities, to

universally safeguarding humane treatment and human rights for all

(Nandy, 1990: 32–3; Minow, 1990a: 7–10, 297). Historically, one can

observe a sad human propensity to allow exclusion, stigmatization and

even victimization of the other and then to deny, rationalize, repress or

disassociate the painful experiences of the other (Nandy, 1990: 32–3;

Minow, 1990a: 4, 5–7; Minow, 1990b: 1673–4, 1684; Herman, 1992:1–4).

Society continues to withhold eligibility for rights and protection for

self-actualization from those it sees as deviant, morally impaired or

simply less than fully human. Communities, families and adults

meaningful to the child may be seen in this way and therefore the child’s

ties to them are liable to be disregarded. Furthermore, though children

are seen by international law as bearers of rights, in practice, they are

very vulnerable and their participation in the determination of their

futures through rights discourse is typically partial and unrelated to

their actual competencies (Minow, 1990a: 285, 303–4). Tendencies to

see the child as not fully human and as property of the state or parents to

be moulded in another’s image may be subtle, implicit, and even

preconscious. Oppression, stigmatization, and social exclusion are

seldom purposeful acts (Minow, 1990a: 62–5). Thus, children afﬁliated

to minorities are in special jeopardy of social exclusion and silencing.

Admittedly, our moral commitment towards the child has grown

since the Second World War through the assimilation of human rights

norms into mainstream democratic culture (Alston, 1994; Van Bueren,

1995: 1–25); this has also served to improve the general level of

tolerance to difference guaranteed by law. However, tolerance as

understood in liberal theory does not necessarily entail a commitment

to viewing different cultures, which children perceive as their own, as

fundamentally equal in worth to mainstream culture: Not all that is

tolerable is seen as of equal worth to ours (Raz, 1998: 204–5). Such a

commitment, which may be seen as a commitment to multiculturalism

(Raz, 1998) encourages us to see children as of equal worth despite their

different cultural identities and because of their common humanity. It

necessitates strengthening our capacity to identify and combat biases

against the other embedded in our upbringing and in professional

training (Minow, 1990b; Schon, 1991) and to publicly expose and

overcome them. It is contended here that one such potential bias is the

bias against culture as a context of personal meaning to the child.

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A traditional ethos of liberal individualism commits us to avoid

silencing minority opinion simply because it may be detrimental to the

public good. In the same vein, when we protect a child’s ties with both

their social family and their community in as much as they relate to

them with a sense of belonging, we may have to compromise the

protection of conformity to values that mainstream or minority

communities see as worthy. This is because the families and communi-

ties of such children may not conform to socially accepted values.

Failing to respect difference in this arena may be seen as effectively

treating children as objects and as inconsistent with regarding them as

rights holders (see by inference Eekelaar, 1994: 51). For example, a

child’s family may promote middle class ‘bourgeois’ values in a socialist

or Marxist society; it may promote paciﬁsm or universalism in a patriotic

or militaristic society. Similarly, it may advocate moral superiority of

religious law or community law over state law.

It is suggested that, if our aim is to ensure that individual children are

not, in effect, silenced, we must positively protect those elements that

contribute to the moulding of an authentic self. It is not enough for law

to ensure that a child is able to express preferences freely and that they

are taken into account as Article 12 mandates (Eekelaar, 1994: 60, note

10). Law must positively ensure that the child’s wishes and feelings are

sought. Only if the law encourages the child’s participation in deﬁning

who they are, can the child develop into an adult capable of expressing

themselves authentically. A commitment by the state to an ideal of

authenticity would introduce a structured element of caution into state

intervention in the ﬁeld of child law. The beneﬁts of such intervention

can be more lucidly balanced with its drawbacks made apparent

through recognition of an individualized identity.

It is argued here that child law should challenge both mainstream and

minority cultures to transform themselves by shouldering a commit-

ment to the ideal of authenticity in relation to child rearing. This does

not envision an abrupt, violent process of transformation, but rather an

evolutionary one. Thus, for example the connotation of belonging may

gradually change: As stated earlier, children are often perceived as

belonging to their parents. Nevertheless, it is not suggested that we

abandon the term ‘belonging’. Rather, one can hope for the transform-

ation of both the legal and common usage of the word belonging. Law’s

focus on protecting the child’s sense of belonging may gradually modify

social norms towards a greater commitment to the development of an

authentic self.

To summarize: it is argued here that, despite wide de jure recognition

of the child’s eligibility to human rights, the legal recognition of an

individualized identity is necessary to reafﬁrm society’s commitment to

the child as a human being in their own right.

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D. How Can Law Protect Not Only the Child’s Right ‘To Become’ but also

Their Right ‘To Be’?

I have introduced the child’s needs ‘to be’ and ‘to become’. The

question remains how both can be practically protected. Self-deﬁnition

can never take place in a vacuum. A child knows who they are only within

a speciﬁc familial and community context (Wilson, 1997:281), however

dull at times. Besides being cared for, a child needs a familial and

communal environment, which they feel is theirs and which affords

them a clear understanding of who they are and helps to give meaning

to their life (Hassall, 1994). The child’s family and community are their

starting points in life. Ideally, these are their family of origin and

community of origin. From within a family and a community a child

naturally begins to create meaningful ties and develop an identity that

evolves over time. Their experiences are gradually applied to new and

widening ﬁelds beyond their family and community of origin as they

mature biologically and emotionally.

The legal deﬁnition of family, however well informed by social

science literature, is ultimately a cultural construction. Nevertheless,

legal rhetoric sometimes erroneously gives us the impression that such a

legal deﬁnition captures some eternal truths (Minow, 1987: 959–60).

Thus, neither ‘blood ties’ nor ‘legal ties’ of parenthood necessarily

signify psychological ties with a child, and in order to discover who ﬁlls

the role of mother or father for the child, it is essential that recourse be

made to the child’s subjective perceptions. In practical terms, protect-

ing the child’s right ‘to be’ primarily means ensuring that they will not

be forced to disown their authentic familial and communal identity, to

the detriment of their sense of self and of their human dignity in order

to gain recognition of their normalcy by mainstream society (Hassall,

1994: 2–3; Bilsky, 1997: 144–5).

An example of the need for such protection arises in cases of

adoption. ‘Closed’ adoption, breaking all ties with biological kin, was

regarded in the not too distant past as the ideal way to guarantee secure

and uninterrupted parenting and family life. Nowadays, the child’s loss

of earlier relationships along with all traces of their pre-adoption

identity is widely recognized as potentially damaging to some children

and a movement to greater openness in adoption is drawing growing

support (eg Eekelaar, 1994: 48; Hoelgaard, 1998: 232).

A helpful illustration of the unmet need ‘to be’ comes from recently

conducted research into the long-term experiences of adopted adults

(Howe and Feast, 2000). The research shows that having a name or

maintaining stable ties with one’s psychological parents, guaranteed

under the UNCRC, is not enough. Adopted adults who were not seeking

substitute psychological parents still wanted to meet their birth parents

(Feast, 2000). Many reported that in this way they satisﬁed important

concerns about their personal identity and ﬁlled a void that they felt

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(Feast, 2000: 387). It is suggested that such searches express the adults’

unmet need ‘to be’ in childhood and adolescence.

Feeling protected in being who they are, a child can then allow

themselves to ‘recreate’ themselves in fantasy and in real life: to dream

their own dreams, wish their own wishes and even implement their own

plans, however small-scale they may be, at ﬁrst. Through interdepen-

dent relationships with their environment they grow to be increasingly

autonomous yet, as explained above, never fully independent (Gilligan,

1982: 74; Minow, 1990a: 301–3; Freeman, 1997: 73).

The strength and signiﬁcance of children’s ties to a family and

community they deﬁne as theirs can vary. Some children are alienated

from both their extended and nuclear families. These children often

develop unique relationships, which may seem peculiar to the

untrained eye. These may be ties to carers, teachers or therapists. These

ties give us the opportunity to question the validity of rigid conventional

boundaries deﬁning who is considered as family and what is considered

professional behaviour. They prod us to challenge the above-men-

tioned assumption that the legal deﬁnition of family captures some

eternal truths. It is only possible to understand these relationships in

light of the problematics of the children’s upbringing and develop-

ment. Atypical responses to abnormal circumstances are often the wisest

and most creative. Thus, the law should respond cautiously to these

relationships and avoid attempts to rigidly dictate that only precon-

ceived relationships serve the child’s best interests.

The deﬁnition of the right to identity should enable the decision-

maker to understand that the little the child sees as their identity,

should, in principle, be protected. This understanding of the child’s

circumstances will enable the decision to ensure that not only does the

child maintain existing ties, but also that they can develop new ones

arising from their personal world. The experience gained through

approximately a century of state intervention in the name of the Welfare

Principle teaches a lesson of caution. Fantasies of saving children may

turn out to be painful for the children involved if they are not heard and

understood as human beings possessing a unique identity. Ties to

imperfect blameworthy carers were too often neglected (Kufeldt, 1993:

9–10; Hassall, 1994: 9–10; Van Praagh, 1999a: 156; Van Praagh, 1999b:

1348). The imposition of well-intentioned adult-minded plans brought

about the result that children sometimes grow up to become alienated

adults incapable of relationships of trust and care (eg Kufeldt, 1993).

If professionals and jurists listen attentively to children and under-

stand what they consider meaningful in their personal world, children

may succeed in challenging their exclusion and may thus grow up to

trust future representatives of normative society and to identify with its

norms (Minow, 1990a: 297–9). Respecting the child’s sense of belong-

ing may promote identiﬁcation with society (Raz, 1998: 203–4).

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Clearly, though the overall outcome of this approach would be

greater legal protection to the child’s ties to their family and community

of origin, in certain cases law may protect signiﬁcant ties a child has

developed to a family and community which they were not born into,

thus overriding the interests of biological parents and minority

communities.

A classical example of such cases would be a situation in which foster

parents who took into their home a neglected child through child

protection proceedings are allowed to adopt that child despite rehabili-

tation of the biological parents. These biological parents may have had a

history of drug abuse, criminality and homelessness. Their rehabili-

tation in such a case is undoubtedly morally admirable. Nevertheless,

the parents’ objections to the adoption may be outweighed by a child’s

clear cut wishes and feelings if the child is accorded a right to an

individualized identity and law becomes responsive to their sense of

belonging.

The new meaning of the right to identity proposed here offers the

child state intervention that is not systematically available at present. It

seeks to ensure that, by protecting ties that they hold valuable, children

see themselves as neither the property of their parents nor of any other

person or organ, such as a state welfare agency.

However, the legal system lacks the tools to fully safeguard the child’s

sense of belonging in each and every case. Law cannot accommodate all

human sensitivities and is inevitably based on no more that an

approximation of what the child experiences (eg Eekelaar, 1994: 46–7).

This notwithstanding, the proposed deﬁnition of a child’s right to

identity offers reinforcement for the safeguards protecting the child’s

human dignity. It rejects the notion of a ‘normal’ identity, which it does

not replace with the endorsement of ethnocentrism, connoting the

position that only black or white or brown is beautiful, a position

regrettably associated with identity politics (Minow, 1996). Rejecting

ethnocentrism while respecting the relevance of ethnicity in the

construction and reconstruction of an individualized identity may

minimize the exploitation of identity politics to promote community

interests at the individual’s expense (Alston and Gilmour-Walsh, 1996:

39; Deng, 2002:188–9). Indeed, for every ‘we’ there is ‘them’. We are

habituated to boundaries between friends and strangers and without

these and other boundaries it is questionable whether we would have an

identity (Sacks, 2002: 46). But the boundaries do not have to be static.

We may, as individuals and as a society, see these boundaries as an

invitation to continually expand our awareness of inequity to the other

and to overcome a sense of threat when encountering difference.

Identity and a sense of belonging do not have to exclude any speciﬁc

unchangeable other from eligibility to rights (Nandy, 1990: 32, Sacks,

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2002: 46–66). If we see otherness as an invitation to care for the other

and thus respect their human rights, for example through the

universally recognized Golden Rule (eg An-Na’im, 1994: 68; Cohn,

1991: 42), we become less alienated from them (Erikson, 1963). Identity

– ‘mine’ and ‘his’, ‘ours’ and ‘theirs’ – can be dynamic and can become

more inclusive. Ethnic distinctions may thus lose their signiﬁcance as

rigid personal boundaries that deﬁne identity (eg Eekelaar, 2004).

The child’s right to identity, informed by an understanding of

authenticity, offers to exchange the imagery of universal uniformity

with an imagery of difference and uniqueness in the way children relate

to their personal worlds (Minow, 1996; Van Praagh, 1999a: 203). A right

to a cultural identity, relying on the child’s deﬁnition of who they are,

assumes the dialectic of change described above (Cooper et al, 1995:

136–9; Van Praagh, 1997: 366; Van Praagh, 1999b: 1348). What the child

deﬁnes presently as their identity may change in the future, as it

continues to evolve. The state’s commitment to upholding the child’s

human dignity, a commitment to their identity as a person developing

towards autonomous adulthood, should ‘accompany’ the child in their

personal journey. A possible derivative of the evolution in the child’s

identity is a change in commitment to different cultures including

minority cultures.

To conclude, under ideal conditions, a child’s nuclear and extended

family, their culture, language and nationality are their ‘birth right’

(Hassall, 1994), which they enjoy without any intervention from the law.

Thus their need ‘to be’ more than their need ‘to become’ is naturally

protected. Family law should aspire to draw children’s lives closer to the

ideal, while recognizing its inherent incapacity, ever fully to achieve this

aim. Having said that, the legal protection of the right to identity as

outlined here, does have the capacity to safeguard a critical factor

relating to the child’s well being, namely personal ties that are

signiﬁcant to them.

E. Culture as a Context of Personal Meaning: Beyond Cultural Sensitivity

Which culture should a child be allowed to enjoy (for example

according to Article 30 of the UNCRC)? which is their culture, say in the

case of a child with multiple minority afﬁliations; biological parents

from one minority, foster-parents with whom he/she lived from age two

to six or adoptive parents? Is it the biological family’s minority culture,

ie, the culture into which the child was born, or is it the minority culture

of the foster family, which raised him/her from ages two to eight?

Perhaps, it is the minority culture of the adoptive family from which

he/she is separated when he/she leaves for boarding school? Perhaps

the peer culture at the boarding school?

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The conception suggested here is that from a child-centred perspec-

tive, the culture that the child should be allowed to enjoy, whether

mainstream or minority, is not an abstract derivative of the decision-

maker’s theoretical knowledge. From the perspective of the individual

child, it is irrelevant how the tenets and lifestyle of Orthodox Judaism or

Shiite Islam are described in any textbook. The child’s lived experience

may be very different from those descriptions. The child’s culture as

uniquely experienced by the individual child is deﬁned here as a set of

related meanings by which the child interprets the reality of their life

and its unique circumstances (eg Kline, 1992). This uniqueness is a

universal human condition: that as he/she grows, each child develops a

unique cultural identity which brings into focus the commonality of

children’s experience of identity formation rather than the ‘otherness’

of the child’s unique excluded culture or experience (Minow, 1999:

24).

Although it is important to understand the different stages of

childhood development and children’s psychological needs derivative

of them, such understanding is, in itself, not enough to enable society to

respond to children’s needs. It may even serve to disempower the child

(eg Eekelaar, 1994). Such understanding reﬂects only an approxi-

mation of the child’s experience. Already from the ﬁrst months of their

lives, children have both the capacity and interest in giving meaning to

events, although admittedly they are often immature decision-makers.

We are therefore called upon to explore the relationship between the

meaning the child gives to events in their life which inﬂuence their

preferences and the legal decisions pertaining to those preferences. It is

not suggested that the right to identity should guarantee the child a

power of veto in decisions pertaining to them. However, ignoring the

meanings the child gives to their personal world by imposing different

meanings regarding what is good and valuable for the child, and by not

offering protection for culture as a construct of the child, can be

detrimental to the child’s quality of life. Not only can this reduce the

efﬁcacy of our efforts on the child’s behalf, but it can also cause them to

experience life generally as duller and society as alienating (see also

Eekelaar, 1994: 54).

The present proposal has not been advocated in the traditional

manner by recourse to a commitment to cultural sensitivity. Further-

more, in light of the above discussion it is not difﬁcult for us to accept

the assertion that in conceptualizing culture as unchanging and

timeless, one may in the name of cultural sensitivity re-incarcerate an

individual (child) in ‘their’ culture (Lavie and Swedenburg, 1996: 3;

Koptiuch, 1996, 215–33). The present approach calls for an empathic

understanding of the individual child’s experience, an understanding

that is difﬁcult to achieve within a legal setting, though not beyond the

capacities of legal professionals.3

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3. INTERNATIONAL LAW

A. Speciﬁc References to Identity in the UN Convention on the Rights of the

Child

In Articles 7, 8 and 9, the UNCRC guarantees respectively the child’s

rights to a name, to citizenship, to know their parents and not to be

separated from them. Article 8 leaves the impression that identity is an

open-ended concept: the attributes of identity, viz., nationality, name

and family relations, are mentioned illustratively (implied by the word

‘including’) (Hodgson, 1993: 265). The next article in which we ﬁnd

explicit referral to the child’s identity is Article 29. This article states the

aims of children’s education, ie, that it should encourage the child to

respect their own cultural identity and that of others from different

cultures. Article 30 guarantees the right of the minority and indigenous

child ‘to enjoy his or her own culture’. Nothing in the UNCRC deﬁnes

culture or what makes one a minority or indigenous child. No article in

the UNCRC or the different sets of guidelines deriving from the

UNCRC explicitly guarantees the child a right to preserve what they see

as their cultural identity or to preserve ties that are meaningful to them

as such, to respect their individualized identity or to ensure speciﬁcally

their involvement in deﬁning their identity.

Questions such as these arise. Do only minority children need law’s

protection? What of undemocratic regimes in which most of the

political and economic power is in the hands of an elite belonging to an

ethnic minority? Is the child born to a Jewish father and a Christian

mother and descended from seven generations of Londoners to be

considered a minority child whose right to enjoy their culture should be

protected in England? Which culture is that? Their father’s? Their

mother’s? Is a child born to a Jewish Mother and a Moslem Arab father

in Israel to be considered a minority child in Israel, where Moslems are a

minority? Both Judaism and Islam consider the child as ‘theirs’ and

expect alliance from the child; the child is both Moslem and Jewish

according to traditional religious laws but may have grown up feeling no

sense of belonging to either of the traditional cultures. There is no

explicit answer to such questions in the text of the UNCRC.

B. The European Convention on Human Rights and Fundamental Freedoms

The ECPHRFF contributes little to the deﬁnition of identity, beyond

adopting a proactive approach to the duty of the state to protect family

life (Bainham, 2000: 483–4). It does not explicitly mention the child’s

right to identity. There is an implied reference to safeguarding the

child’s right to identity in Article 8, which positively obliges ratifying

states to uphold the individual’s right to respect for family life. But, as

Bainham (2000: 483–4) maintains, it is unclear what the child’s right to

family life implies. The European Court of Human Rights ruled that the

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interest of knowing one’s origins is protected by Article 8 (Frowein,

2002: 130–14). However, much remains unclear. If knowledge of one’s

origins destabilizes the child’s family life, which of the child’s interests

takes precedence and must be protected? How is the interest to be

balanced with other interests protected by rights such as the right to

state intervention on the child’s behalf or the right to parental

guidance, both of which may safeguard the child’s emotional wellbeing?

To what extent will the interest of knowing one’s parents be protected?

No answer is given in either the wording of the ECPHRFF or in the

interpretation of the UNCRC offered by the jurisprudence of the

European Court. To conclude, explicit referrals to identity in these key

international legal documents do not provide a legal framework which

may protect a child-constructed identity.

The next section examines the relationship between Articles 5, 12

and 13 of the UNCRC and suggests how the implicit references to

identity-related rights that they contain can help us to develop a

conceptual framework beyond the explicit references to identity in the

UNCRC .

C. The UN Convention: The Overall Picture

As noted earlier, the provisions of the UNCRC relating speciﬁcally to

the child’s identity do not explicitly protect the child’s individualized

identity. One cannot however understand the UNCRC’s position fully

by relating solely to these provisions. It is suggested that the UNCRC as a

whole shows that conceptually, it supports the meaning of the right to

identity proposed here. The preamble states:

. . . (the parties to the convention are) convinced that the family, as the

fundamental group of society and the natural environment for the growth and

well-being of all its members and particularly children, should be afforded the

necessary protection and assistance so that it can fully assume its responsibil-

ities within the community.

It should be noted that the preamble does not stop with a commitment

to respecting family life, but goes further: it adopts a clearly proactive

approach in advocating a positive duty by the state to support family life.

The family the preamble envisages is clearly a social family, which

nurtures the child’s psychological wellbeing. It may well not be the

biological family, but rather a foster family or an adoptive family. The

preamble also ascribes positive value to cultural plurality, stating that

member states have accepted the obligations in the UNCRC to take ‘due

account of the importance of the traditions and cultural values of each

people for the protection and harmonious development of the child’.

Article 18. 2, for its part, enjoins the state to protect and support family

life:

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For the purpose of guaranteeing and promoting the rights set forth in the

present convention, State parties shall render appropriate assistance to parents

and legal guardians in the performance of their child-rearing responsibilities

and shall ensure the development of institutions, facilities and for the care of

children.

Article 20, like the preamble, can be seen as seeking to protect the

child’s ties to a personal world. However, there is no mention of identity

in the article:

When considering solutions (for children temporarily or permanently

deprived of their family environment, or in whose best interests cannot be

allowed to remain in that environment) due regard shall be paid to the

desirability of continuity in a child’s upbringing and to the child’s ethnic,

Religious, cultural and linguistic background.

Article 5 of the UNCRC, while also not mentioning the word identity,

offers an important key to understanding its intended de facto

protection of the child’s identity. It reads as follows:

State parties shall respect the responsibilities, and duties of parents or, where

applicable, the members of the extended family or community as provided for

by local custom, legal guardians or other persons legally responsible for the

child, to provide, in a manner consistent with the evolving capacities of the

child, appropriate direction and guidance in the exercise by the child of the

rights recognised in the present convention.

This article clearly frames a broad general principle, and also has a key

role to play in the interpretation of the provisions of the convention.

Importantly, it creates a new basis for the relationship between the

child, the family and state that supports the psychological rationale for

the deﬁnition of the right to identity proposed here, namely that the

state’s primary responsibility towards the child is to respect the role of

the nuclear and extended family and of the community in the child’s

life, rather than to intervene in order to protect the child from them.

A tension exists between Article 5 and Articles 12 and 13, which grant

the child a right to be heard, a right to participate in decisions relating

to them and a right to free expression — rights that can override

parents’ wishes. It is not difﬁcult to contemplate situations in which

parents entrusted to guide the child in the exercise of their rights would

be tempted to obstruct the child from exercising their rights because of

the parents’ selﬁsh interests (Freeman, 1997: 68; Fortin, 1998: 42).

However, it is suggested that Article 5, through its moderation,

generality and relative ambiguity, can, when understood in combi-

nation with Articles 12 and 13, contribute to an evolutionary process,

which will advance the child’s legal status. It is suggested that the

UNCRC thus encourages adults with whom the child maintains

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meaningful ties to ﬁnd culturally appropriate ways to respect the rights

of the child including their right to participation in decisions relating to

them.

As An-Na’im explains, delegates from the Southern hemisphere who

took part in the drafting, adoption and implementation of human

rights norms did not operate with concepts and mechanisms from their

own political, cultural and ideological history and thus the universal

human rights consensus reached is elusive (An-Na’im, 1994: 65).

It is suggested that, by trusting families and communities to respect

children’s rights and by not derogating from their cultures and

traditions, the UNCRC (primarily through Article 5) offers families and

communities a challenge which cannot easily be dismissed as patroniz-

ing, alien, imperialistic or Eurocentric, despite the fact that the

terminology of human rights originated in Europe and was mainly

developed by the West.5

It is contended here that the tension between Articles 5, 12 and 13,

and the legal complexity it produces, is to be welcomed since it reﬂects

the real-life complexity of responding to the child’s conﬂicting needs

‘to be’ and ‘to become’. Essentially, through this tension the UNCRC

overcomes the temptation to entertain a crude atomistic vision of the

child’s interests. Our discussion illustrates that by endeavouring to

reach a balance between protection rights and participation rights, the

UNCRC is not a children’s liberation manifesto. Clearly, it does not

purport to free children subjugated by adults. I suggest that it does not

abandon children to some of their rights. Children who exercise

participation rights and civil rights and also enjoy protected adult

guidance have a greater chance to develop into more rounded adults,

who can not only exercise autonomy, but also function within relation-

ships of commitment and responsibility (Freeman, 1997: 37–40; Smith,

1997:103).

This scenario, in which the child’s evolving capacities are recognized

within the guidance and protection of adults, may be threatened

because of the inadequate protection offered to the child’s right to

identity. Adults are often tempted to dismiss what a child says. For

example, they may describe their input as immature and an expression

of ignorance, ‘programming’ or ‘brainwashing’ (Ronen, 1998). Thus,

for example, through diagnosis of the controversial ‘Parental Alien-

ation Syndrome’, some courts have been persuaded to order a child who

is functioning well both emotionally and intellectually to live with a

parent whom he/she hates, or in a state institution. This may happen

even if the hated parent had been abusive towards the child and there

are objective reasons for the child’s aversion to him, as long as

brainwashing against the hated parent by the other parent is proven (eg

Bala, 1999: 194–5; Bruch, 2001). Thus, there is a real risk that Article 12

will be emptied of meaning through paternalistic notions of protecting

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children from inﬂuence and coercion (Eekelaar, 1994: 56–7; Ronen,

1998: 257–9;).

If a child has legal recourse to a claim for consideration of their wishes

or feelings because, beyond allowing them self-determination as

proposed by Eekelaar (1994: esp. 52), these wishes or feelings indicate

ties that are meaningful to them, their participation in decisions

relating to them may become more visible and inﬂuential. In such

circumstances, recognizing a child’s right to be heard and to participate

in decisions pertaining to them and to express themselves freely, may

enhance the weight given to the child’s deﬁnition of family, community

and culture and may allow meaningful implementation of Article 12 in a

manner that overcomes the prima facie tension with Article 5. If a

child-constructed right to identity is recognized, the tension between

Articles 5, 12, 13 may serve the development of the child’s identity.

4. IDENTITY IN TWO CASES: THE STORIES AS TOLD BY THE COURTS

Two English Court of Appeal cases are now examined, introduced at the

outset of this article, attempting to implement the proposed redeﬁni-

tion of the right to identity.

A. Re M (Section 94 Appeals)6

This case concerned a seven-year-old girl, whom the court called S. The

girl’s parentage was of mixed race, her mother being white and her

father black. The parents never married and upon the breakdown of

their relationship the father had unsupervised contact with the child,

which was stopped by the mother from time to time. Proceedings before

the Family Proceeding Courts ended in the magistrates granting the

mother’s application to terminate the contact between the child and the

father. The father appealed under section 94 of the Children Act 1989

and Ewbank J. dismissed the appeal. The father then appealed against

the decision to the Court of Appeal. The decision in the Appeal was

written by Butler-Sloss LJ, Kennedy LJ concurring.

Butler-Sloss LJ explained that the appeal was remitted for rehearing

because the judge did not advert at all in his judgement to the ‘major’

issue of race and to the failure of the magistrates to deal with it.7The

Judge linked the failure to deal with the question of race to other

factors:8

The mother and her new husband are white and the father is black. The child

whose photograph I have seen is clearly of mixed race. The court welfare ofﬁcer

was troubled by the ending of the contact when she felt that the child would

wonder why she did not see her father, especially since she is a mixed race child.

She had said she was getting a new white daddy. The court welfare ofﬁcer felt

the child was confused about her racial identity, and on my reading of the

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reports and the oral evidence there was at least a hint of the mother and

grandmother shutting their eyes to this important issue. The welfare ofﬁcer

asked for an adjournment for six months to enable contact at a contact center

to continue and be monitored. The magistrates made ﬁndings adverse to the

father in that he showed little interest in the child’s schooling, had little insight

in the child’s emotional or developmental needs and did not meet his ﬁnancial

obligations. Although some of these ﬁndings were against the views of the court

welfare ofﬁcer, the magistrates were entitled to make their own ﬁndings...The

child had said she did not want to see her father but the court welfare ofﬁcer did

not believe that such was the child’s underlying view and gave reasons. The

magistrates ought in my view at least to have indicated their disagreement with

the court welfare ofﬁcer on the issues of the child’s behaviour and her wishes,

which they clearly thought signiﬁcant. The magistrates decided that the

contact had not added anything positive to S’s upbringing and the father had

not shown sufﬁcient commitment and dedication to deal with the complex

situation, in particular the degree of hostility by the mother and grandmother

towards him.

The reasoning of the decision given by Butler-Sloss LJ offers some

substantive guidance to the judge re-hearing the case:9

Whether in the future this father will have any contact at all, frequent contact,

infrequent contact or indirect contact, will be a matter for the judge rehearing

the application. He or she will have to consider the signiﬁcance of race and the

hostility of the maternal family towards the father and place those and all the

other factors for and against the father having contact to the child in the

balance in coming to the decision on contact. But the child’s racial origins and

the concerns of the court welfare ofﬁcer have to be carefully considered and it

is for those reasons that I felt this appeal has to be allowed.

Below, I shall critically examine this reasoning leading to an outcome

I consider as highly questionable from a children’s rights perspective.

B. Re M (Child’s Upbringing)10

In this case the care and adoption of a ten-year-old black African boy of

Zulu parentage was contested between his biological parents and a

white foster mother. The boy, called P by the court, was born in South

Africa to a mother who worked as a nanny and cook/housekeeper in the

house of the foster mother who had three daughters. The mother was

not married to the father who also worked for the foster mother for a

while. From the age of 18 months the boy lived with the foster mother in

her home in a way that would enable him to remain there with his

mother instead of being sent back to his mother’s village according to

apartheid regulations. The boy and the white employer became closely

attached to each other. The father had only sporadic contacts with the

child and his mother. It appears that at some stage during P’s early years

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the father had a relationship with another woman who bore him a child.

In 1992, when P was six, the foster mother decided to leave South Africa

for London because she regarded the political situation as unstable and

was worried about possible violence. When the foster mother decided to

leave, P’s parents agreed that he move with her. It is noteworthy that,

according to Thorpe J, who heard the case at ﬁrst instance:11

the appellant’s ﬁrst preference would have been to take both the mother and P

with her to London, but the mother made it plain that she would not leave her

homeland. . .the easiest course. . .in practical terms would have been to have left

(P) behind with (the mother). But. ..she had by then a strong...attachment to

the child. Those attachments led her to offer to continue to take care of (P) and

to provide for him as though he were her own child. . .The only issue between

the parties is as to the duration of the arrangement. (The appellant) asserts that

it was an indeﬁnite arrangement that would endure until the completion of

(P’s) education. (The father and the mother) assert that the arrangement was

for ﬁve years precisely. It seems to me that reality lies somewhere between those

poles.

On arrival in the UK in March 1992 the foster mother told the

immigration authorities that she wished to adopt P and P was given leave

to remain in the UK for three months. By May 1992 the foster mother

had already reached a ﬁrm decision, unknown to the parents, that she

wished to adopt P. In October 1992 she wrote to the mother the

following:12

To keep (P) in this country I have to adopt him. If there is another way to do it, I

will. I will never take him away from you, so that you won’t be able to see him

again. You are his mother.

Soon after that, the parents were visited by a social worker at the foster

mother’s request in order to establish their wishes as to P’s adoption.

The parents initially objected to the adoption and the mother spoke of

not hearing from the child since July. A few days later the social worker

wrote again to say that the mother’s position appeared to have changed.

She was proposing that if P stayed in England he should visit his

biological parents each year for a month. Later, both parents expressed

the opinion that if the foster mother wanted to take the child for ever –

breaking the agreement with them – the child should return to them as

soon as possible.

Between June and August 1993 the mother wrote ten letters, some of

them dispatched within days of each other, in which the mother

pleaded for the child’s return to South Africa for a visit. In July 1993 the

foster mother wrote a letter telling the mother that she could not send P

to South Africa at that stage. The Judge described the letter as ‘a

surprisingly dispassionate response to what were moving appeals’.13 He

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concluded that the father was an insubstantial ﬁgure in the child’s life,

as the only communication between him and the child was one

Christmas card.14 His appraisal of the relationship between the biologi-

cal mother and the foster mother, quoted by the Court of Appeal, is

particularly noteworthy:15

The correspondence shows the closeness of the relationship between (the

mother) and (the appellant’s) family. It further shows the tragic evaporation of

trust and affection, gradual but steady . . . it is signiﬁcant that the correspon-

dence peters from frequent and intense . . .. to non-existent after the

commencement of litigation.

In 1996, four years after the initial separation from his biological

parents, the court gave its judgement. It could have chosen between

three options deriving from the parties’ contentions: adoption (as

sought by the foster mother), immediate return to South Africa (as

sought by the parents) and a return to South Africa at the end of the

period agreed upon, whatever that period might be.

The court in fact decided to adopt a fourth option. It laid down a

master plan for the child’s return to South Africa after a period of two

years in which the child would be reintroduced to ‘his’ family and ‘his’

country, to use the court’s words. In two years’ time the court would

determine the dates and the circumstances of the child’s permanent

return to South Africa. The white foster mother was to pay for the travel

expenses of the parents to England and of the child to South Africa. She

could not afford most of her undertakings, as she became unemployed.

She appealed against the order of the judge on the basis that the review

should reopen the issue of the child’s residence and upbringing during

adolescence. The child’s biological parents appealed contending that

the child’s return should not be further delayed.

An expert psychiatrist appointed by the court explained the danger-

ous consequences of forcefully and prematurely removing the child

from the foster mother and her family:16

To remove him in the middle of turmoil of disagreement would be very

profoundly damaging, to such an extent that the boy might never recover his

poise and psychological well-being and conﬁdence.

Although it was clear from the expert opinion that the child’s mind was

set very strongly against return, the court allowed the appeal of the

parents. Ward LJ, quoting from another case, implied that allowing the

child to remain in the UK would create a great danger of slipping into

social engineering. The boy was returned to South Africa.17 The child

‘was so unhappy’ in South Africa that he was later returned to England,

into the foster mother’s care (Fortin, 1998: 357 note10). In this case,

too, I shall re-examine judicial reasoning leading to an outcome I

consider as highly questionable from a children’s rights perspective.

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5. ANALYSIS OF THE TWO CASES

A. Re M (Section 94 Appeals)

Although Butler-Sloss LJ says that the magistrates thought that the

child’s wishes were signiﬁcant and that they disagreed with the court

welfare ofﬁcer as to the child’s underlying views, we learn very little

about how the girl saw her father or how they related to each other. The

Court of Appeal does not instruct the judge rehearing the case to look

into questions, which are fundamental to the child’ psychological

wellbeing. Does she love her father? Does she care about him at all?

Does she feel sorry for him? Is she proud of him? Does she ever dream of

living in her father’s home or of her father looking after her? Without

answers to these or similar questions, which relate to the meaning of the

parent-child tie, we know very little of this facet of the child’s

individualized identity.

The judges are morally judgemental towards the father, disparaging

his parental capacities, for apparently valid reasons. However, when

deciding on parental contact, the child’s sense of belonging and even

the concept of psychological parenthood remain unmentioned.

Nothing in the UNCRC or the ECPHRFF dictates a different outcome.

Nevertheless, the analysis offered here suggests that it is less

signiﬁcant that the child says she has a ‘white’ ‘daddy’ than that she says

she has a ‘new’ ‘daddy’ (see also Eekelaar, 2004). Supported both by

recognition of the child’s need ‘to be’ underlying the child’s right to

identity and by psycholegal literature (eg Eekelaar, 1994: 48), the court

should have asked – sceptically – how a seven-year-old child who has

known her father from birth can be reconciled with the fact that she

suddenly has a ‘new father’. The Court should have explicitly assumed

that a non-racially mixed child, a child who is not confused about her

racial identity, would also be inclined to wonder why her father had

disappeared.

The magistrates’ choice of words is troubling, We learn that they

terminated contact primarily because the father had not added

anything to the child’s upbringing. However, a father is part of the

child’s being. A child may see her father as emotionally belonging to her

even if he does nothing intentional for her and even if one cannot point

to anything speciﬁc, which he added to her upbringing. As an

interdependent human being the child’s needs her father and not a

father even when he adds nothing visible to her upbringing.

Rosenblatt (1996), who is generally supportive of the Court of

Appeal’s decision, rightly points out that the nurturance of the ‘ethnic

child’ toward sound psychological development could be more prob-

lematic than that of the white child, as the latter does not have to face a

society which rejects their ‘ethnic’ parent. It is suggested that we go

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beyond Rosenblatt’s championing of the court’s ‘racial and ethnic

awareness’ (1996: 641). The court’s reasoning reﬂects a colour con-

scious yet vague and impersonal image of the child’s identity. It is

suggested that this image is unsatisfactory from a child-centred

perspective.

If the father has no signiﬁcance in his daughter’s life, if she perceives

him as not caring about her emotional needs, then being entitled to an

individualized identity, she should not be forced to see him only

because of a similarity in skin colour. If this is her perception of him, and

she is forced to see him, it seems doubtful that such meetings would

bolster her self-esteem concerning her racial identity. If, on the other

hand, the child’s father is signiﬁcant to her and she wishes to be in touch

with him despite her mother’s hostility towards him, it is not the

similarity of their skin colour that should be the deciding factor. In the

latter case, the court must strike a difﬁcult balance between the child’s

right to participation and self-constructed identity and her right to a

stable psychologically nurturing family life.

The mother and grandmother are hostile to the father and may be

shutting their eyes to the child’s confusion about her racial identity.

Their hostility may be only to the father as an individual or it may

amount to racial prejudice. The court could have made this distinction

and suggested that in both cases the child’s wishes and feelings may be

harmfully inﬂuenced by their attitudes and that they have a right and

duty to guide the child in the implementation of her rights, being loyal

to her interests in this task.

The court’s judgement misses the opportunity to draw attention to

the ﬁne line between the sphere of imperfect yet legitimate adult

guidance and inﬂuence and what lies beyond such a sphere and

amounts to violation of the child’s rights through programming. It also

does not clarify that, whether or not intervention is the least detrimental

alternative from the individual child’s perspective, it can also be

deduced from the child’s wishes and feelings.

To summarize, the Court of Appeal addresses the question of race in

the abstract. Butler Sloss LJ does not direct our attention to the child’s

individualized identity, as perceived and constructed by the child, and

does not see the court as duty bound to protect such an identity. Thus,

the court’s decision — I assume, unintentionally – serves ethnocen-

trism. The child’s right to be in touch with the person she considers her

father is overshadowed by efforts to ensure that the break of relation-

ship with a black father will not adversely inﬂuence her feelings about

being dark skinned. The Court’s instructions to the Judge rehearing the

case can be easily justiﬁed if one resorts to the common perception of

cultural sensitivity or to the interests of the black community or black

children at large. However, from the individual child’s perspective, the

pivotal question, which was neglected, was not that of ‘the child’s racial

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origins’ as such, but rather what the child sees as emotionally belonging

to him. In practice, the difference between the two may be subtle, yet it is

important to make the distinction.

B. Re M (Child’s Upbringing)

Both Neill LJ and Ward LJ wrote detailed judgements. The concluding

passage written by Neill LJ is revealing. In it he explains why the child

must be returned:18

Anyone who has studied this case cannot fail to have great admiration for the

appellant and for the love and affection, which she and her family have given to

P since he was a baby. But he has the right to be reunited with his Zulu parents

and with his extended family in South Africa.

The ‘yes, but’ dynamic of the above dicta of Neil LJ is interesting; it is

similar to a passage in an American child abuse case (the DeShaney

Case) discussed by Minow (1990b: 1674–5). The passage starts with an

empathic response, deriving from an almost instinctual sense of human

interconnectedness, and ends with what seems to be an inevitable

rational decision, which must overcome the initial empathic response.

It is suggested that, because we are conditioned, as jurists, to dichoto-

mize reason and emotion, to ignore our common interdependence and

to delegitimize empathy as a decision-making tool, the legal conclusion,

in opposition to the judges’ empathic response may seem even more

inevitable. But we should carefully explore whether the solution is as

inevitable as it seems. It is suggested that the answer is negative.

Neill LJ’s seemingly straightforward implementation of the child’s

‘right’ to be reunited with ‘his’ family may be questioned. His decision

may be seen as an implicit unrecognized determination in a conﬂict of

rights; between the right to be uniﬁed with one’s biological nuclear and

extended family and the right to remain with one’s foster mother who is

a psychological mother and with her family (Freeman, 1997: 13–14,

note 87). It is suggested that by denying paramountcy to the psychologi-

cal parenthood, the court may be denying the child the opportunity to

grow psychologically towards adulthood through dynamically deﬁning

and constructing an authentic identity. Consequently the duty to give

due weight to the child’s wishes under Article 12 may be practically

emptied of meaning. Jane Fortin accurately identiﬁes the ‘undercur-

rent’ of the court’s rationale (with which she apparently agrees) when

she writes (1998: 357):

In Re M (Child’s Upbringing) the Court of Appeal was effectively asked to redress

the perpetration of racial iinjustice by a white South African woman who had

produced a situation whereby P, a ten-year-old boy of Zulu parents, had

stronger ties of affection for her and her family than he did for his own parents.

The case was a complex one. In particular, there was the slightly unsavoury

background which suggested that the white foster mother had deceived P’s

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birth parents over her true intentions when gaining their consent to her taking

P with her when she came to England.

One can see no reason to doubt that Neil LJ sincerely attempted to be

culturally sensitive. Furthermore, his decision is, strictly speaking, in

accordance with both the UNCRC and the ECPHRFF, as analysed

above. Nevertheless, one may well ask: does the ‘ofﬁcial story’ of a white

woman perpetrating racial injustice against her black former employee

reﬂect the authentic experience of the individuals involved? Was the

resulting situation unilaterally or predominantly ‘produced’ by one

individual? Does the ofﬁcial storyteller, namely the judge, go beyond

trying to act in a way that is commonly perceived as culturally sensitive

and seek to relate empathetically to the individuals involved? The

answer suggested here to these questions is negative.

By highlighting and reinterpreting certain facts, I would like to offer a

counter story, as lawyers often do in courtrooms (eg Ferguson, 1996:

86). In this counter story I attempt to expose and counteract an

unintentionally politicized selectivity of compassion. Let me (re)start by

pointing out that the child was raised in a Zulu environment only up to

the age of 18 months. Since that age, the foster mother, with the

biological mother’s consent and approval, had brought the child up.

This was in order to tackle an apartheid regulation mandating that the

child return to his mother’s village. The foster mother’s family objected

to her close ties with the blacks. She may have had to deceive both her

family of origin, which was supportive of apartheid regulations and

apartheid authorities in order to maintain de facto guardianship of the

child. Deceit may have been a necessary ingredient for survival in the

foster mother’s world. If we ﬁnd fault with the foster mother’s

deceitfulness, why not also consider her more politically correct

deceitfulness? Could it be that deceitfulness becomes a coping strategy

too easily sought once used by necessity? It was also not contested that

the foster mother suggested that the boy’s biological mother

accompany her to England and that the mother refused because she

would not leave her homeland. There was no clear agreement as to the

duration of the child’s stay in England. Even after the foster mother

asked for the biological parents’ consent to adoption, at one stage the

biological mother was prepared to agree that the child ‘live’ in England

if he would visit her every year for a month. The most remarkable fact to

be emphasized in such a counter story would be the child’s return to

England with the consent of his biological parents after they gained full

guardianship of him.

The efforts of this counter story to reach an empathic understanding

of the individuals involved identiﬁes no villain, but only imperfect

human beings, not always fully cognisant of their interdependence,

trying to act decently and even lovingly in a difﬁcult social reality, and

sometimes failing. The foster mother was not implementing a master

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plan to break the ties between the child and the biological parents

through her initially secret efforts to adopt the child. It was the mother’s

choice to remain in South Africa. However, at some stages, the foster

mother’s attachment to the child did not bring out the best in her – as

noted by the court, her dispassionate response to the mother’s painful

letters indicates a blatantly insensitive attitude towards the child’s

biological mother. Nor did the parents have a master plan to ﬁrst use the

foster mother, a widow with three girls of her own, to raise their child

and then turn their backs on the foster mother and betray her trust by

demanding her separation from the child for good when it suited their

personal marital plans.

They initially enjoyed the love and generosity the foster mother

offered the child, but it was also her behaviour which manoeuvred them

into a position of opposition. All parties seem to be struggling with

difﬁcult life situations. Human frailties seem to explain better than any

other reason the breakdown of relations primarily between the two

women who initially cared both about each other and for the child and

were struggling to do their best in difﬁcult circumstances.

What is remarkable in this case is what was created and not what was

later ruined. Subtly, the case exempliﬁes how clear-cut racist deﬁnitions

of otherness are challenged and overcome through care and trust

between two women attached to the same child. For a while, familial,

communal and ethnic boundaries are ignored. Bitterness and distrust

between the two women could have surfaced only after alienation was

initially overcome.

It is suggested that, as in Solomon’s dilemma, the court must identify

the solution that holds most compassion for the child. I suggest that

Solomon attempting to identify the psychological mother was aided by

the fact that one of the women was ready to give up the child to save his

life. Through her decision she demonstrated her greater compassion

for the child.20 The English Court was aided by the biological parents,

especially the more involved mother, who gave several hints that the

child’s best interests lay with the foster mother. Though her pain at

being torn away from her son moved her to disagree in the hearing to

his adoption, her compassion for him is mirrored in her ambivalence.

After voicing her objection, she is, at one stage, before any litigation,

ready to concede to adoption if the child visits her for a month each

year. If the foster mother had acted in a more caring and trust-inspiring

way towards her, the litigation might have been avoided. The child

ﬁnally returned to England, not because of a court order, but probably

due to the recognition by the ‘victorious’ biological parents that he was

very unhappy in South Africa with them and with his community of

origin.

The case illustrates the abyss between respect for the child’s culture as

a context of personal meaning and cultural sensitivity as commonly

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perceived. Using abstract notions of culture and ancestry and neglect-

ing culture as a context of personal meaning, the court ignored the

signiﬁcance of the biological parents’ choices. The parents identiﬁed

the child’s best interests as not growing up in the Zulu village of his

mother. They preferred him to grow up in the home of a white Afrikaner

woman and they later preferred offering him a rare opportunity to

actualize his – human – potential through an English education, ﬁrst in

South Africa and than in England, to educating him in a Zulu

environment, most probably, with very meagre resources and very

limited educational opportunities. Finally, I would suggest that the

parents were forced by the outcome of the proceedings, ignoring their

hints, to take the initiative to break away from their offspring in order to

respect the child’s sense of who he is and ties that he would most like to

maintain. At the end of the day, it seems that the child’s painful struggle

and the responsiveness of his biological parents to his suffering ensured

protection of an individualized child-created identity. It is conceivable

that the parents’ implied conception of identity is not inexorably tied to

a place. Proponents of ethnocentric identity could have found fault in

the parents’ actions, especially if motivated by such a conception of

identity.

To conclude, had the court recognized the child’s right to an

individualized identity as proposed here, the child’s wishes and feelings

would have been given due weight in the ﬁrst place, and would have

allowed the court to protect an authentic child-constructed identity

radically different from any clear-cut notion of Zulu or Afrikaner

identity. The court could have utilized the child’s input as to his identity

to navigate a course between the child’s wishes and the responsibilities

of the different adults in his personal world. Such a course would have

been in accordance with Articles 5 and 12 of the UNCRC. Article 5 is

signiﬁcantly open-ended in its wording and would have enabled

consideration of the responsibilities of the foster mother, undoubtedly

a signiﬁcant person in the child’s life.

The case is, in my eyes, a classical example of the assertion that ethnic

distinctions do not indicate the personal boundaries one sets between

oneself and others, nor how society could respond to the child’s sense of

belonging. It clearly exempliﬁes the distinction and tension between

cultural sensitivity as commonly perceived and respect for the child’s

individualized identity.

6. CONCLUSION

The right to a self-constructed identity may be seen as deriving from the

child’s fundamental human dignity, though it goes well beyond what

has been traditionally deduced from a legal commitment to the child’s

human dignity. The two cases examined here demonstrate how the

proposed concept of identity can radically change the outcome of

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child-centred deliberations. A self-constructed identity is the product of

the child’s experience rather than an adult imposition or a general

approximation of children’s experiences, wishes and feelings. Legal

recognition of such an identity leads child law into new ground.

Children may need proactive state intervention in order to maintain

relationships meaningful to them. These needs are not guaranteed

under the UNCRC, which instead now offers an ambiguous concept of

identity. It mandates that the child be educated to respect their own

cultural identity and that of others, but not that this cultural identity be

protected by the law or that the child’s feelings be consequential to the

deﬁnition of their identity.

Proactive state protection may at times imply ensuring survival of a

distinct cultural identity through indeﬁnite future generations, mir-

roring authentic aspirations of minority children. Traditional liberal

theory cannot justify such measures, and indeed theorists adhering to

such an ethos, such as Kymlica (1989) and Tamir (1993), did not

advocate proactive state action. The scope and substance of such state

action, not discussed here, may justify further research.

Every society that is committed to human rights should see its way to

granting clear and unequivocal recognition of the child’s right to a

self-constructed identity. For this purpose an Optional Protocol to the

UNCRC may be drafted. Once the right gains recognition, child law

jurisprudence will have to develop the judicial tools needed to ascertain

a child’s authentic identity while overcoming law’s tendency towards the

abstraction and objectiﬁcation of culture and while protecting the child

from premature autonomy.

Redeﬁning the child’s right to identity has wide implications beyond

those exempliﬁed in the two cases discussed. For example, in a

guardianship dispute, when the court rules on a child’s disputed

exposure to different religious and cultural traditions, greater weight

would have to be given to the child’s wishes and feelings in order to

protect their sense of belonging. Choosing between the Tender Age

Test, the Primary Caretaker Test and Psychological Parenthood/

Emotional Bonding Test (eg Eekelaar, 1994: 46; Sexton, 2002), it would

be almost impossible not to give paramountcy to the child’s emotional

bonding. Greater consideration will need to be given to the preferences

of a child’s biological parents regarding the cultural, religious and

ethnic identity of the couple who adopt their offspring, since such

preferences may protect the evolving construction of an identity by the

child. Open adoption would be preferred in cases of some older

children due to the infringement of closed adoption on the child’s right

to an individualized evolving identity.20

Returning to the question of social engineering raised by Ward LJ in

Re M (Child’s Upbringing), I suggest that framing decisions concerning

individual children in line with ethnocentric identity politics and

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purporting to correct group wrongs through court decisions relating to

ties of individual children is a subtle yet dangerous form of well meaning

social engineering. Whereas afﬁrmative action always aims to serve the

interests of the individual minority child, here the child pays a price for

correcting group wrongs. Such decisions while often purporting to

express cultural sensitivity, may perpetuate the re-creation of insulated

discrete identities competing with each other within a social arena

which champions group differences and silences the individual child in

their efforts to chart their own way as a creator of meaning. A static

conception of identity, tying identity to place of birth may serve such a

trend (Lavie and Swedenburg, 1996) and may thus jeopardize the ties

some children develop to their places of residence. These may be, for

example, children of asylum seekers, children of foreign workers or

children abducted by a parent from their place of birth because of abuse

unrecognized in the country of origin.

Recognition of the child’s experiences through the right to identity

leads to legal responses to child law dilemmas that may be more

authentically compassionate towards the child. Protection of ties

between a marginalized parent, who has strayed from mainstream

norms of child rearing, and his child may be at odds with public

sentiment typically keen to classify, marginalize and exclude some

‘other’ and yet be authentically responsive to the child’s needs. Thus,

compassion towards the child may be less easily politicized.

Such legal responses may be less effective in serving the public

interests of retaliation and deterrence of abusive parents. However, as

exempliﬁed through the two cases, it would be wrong to conclude that

recognition of the child’s right to an individualized identity will

necessarily strengthen the legal status of biological parents. In the

competition between biological parents and adoptive parents or

between biological parents and fosterparents, recognition of such a

right would clearly undermine the centrality of blood ‘ties’ when these

do not correspond with ties that are meaningful to the child.

NOTES

1Following the UNCRC, a child is deﬁned here as any person from birth to the age of 18 years.

2For further critiques of an atomistic vision of the child, leading to recognition of the child’s

dependency needs see Minow, 1990: 306; Glendon, 1991: esp. 47–8, 66–75; Brooks,1996; Mutua,

2002: 80–1. For a rather pessimistic appraisal of the UNCRC’s potential to promote the rights of the

child as an interdependent human being see Freeman, 1997: 73–4.

3For detailed discussions of jurists’ ambivalence towards recourse to empathic understanding in

legal analysis see Henderson, 1987; Massaro, 1989; Minow, 1990b; Wexler, 2002.

4Citing Gaskin vUnited Kingdom (1989) 160 Eur. Ct. H.R. (ser. A.) p 25.

5For a general child-centered critical discussion of cultural relativism see Freeman, 1997:

129–35,137–40, 147.

6[1995] 1 FLR 546.

7See n 2 at 550.

8Ibid at 550.

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9Ibid at 550.

10 [1996] 2 FLR 441.

11 See n 3 at 479.

12 Ibid at 492.

13 Ibid at 480.

14 Ibid at. 479.

15 Ibid at 479.

16 Ibid at 493.

17 Ibid at 454.

18 See n 3 at 454.

19 My interpretation of Solomon’s Dilemma assuming that the child’s guardianship was

determined according to responsiveness to emotional needs and not biology is certainly not

beyond dispute. See eg Woodhouse, 1994: 1526.

20 In an earlier article on the right to identity (published in Hebrew) I examined New Zealand’s

Children, Young Persons and Their Families Act of 1989 and Israeli legislation and case law. I

examined there the implementation of the right to identity in the contexts outlined in the text

focusing on Israeli case law. See Ronen, Y. (2003) ‘The child’s right to identity as a right to belong’

(Hebrew), 26 Tel Aviv University Law Review 3, 935–84.

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Raising Theybies: Navigating within a Gendered World

Thesis

Full-text available

May 2020

Max K Davies

Within modern society you either conform to gender normativity or you contest it, however, a person’s positioning depends largely on how well gender is performed by the interpretations of others (Butler, 1990). To successfully navigate the gender dichotomy a person will gain rewards in status, relationships and protection, those who fail, will be ostracised, marginalised and even killed (Kosciw et al., 2018; Heshmat, 2014; Celis et al., 2013; Yelland and Grieshaber, 1998). Gender is controlled and managed for the maintenance and preservation of hierarchy and patriarchy by the ruling white, male, cis-gender, heterosexual class through the division of humans at birth based on genitalia (Jakiela and Ozier, 2018; Hibbs, 2014; Selly et al., 2011; Yelland and Grieshaber, 1998; Stets and Burke, 1996; Bordo, 1996). Gender creative parenting is not without its difficulties within this androcentric driven, dualistic ideological society however, it is a political presence for change (Weedon, 1987) that highlights the power gender has over the mind within the conscious and subconscious. If there were no essence of gender it would not produce the very idea of gender to begin with (King, 2004). Gender is sustained and created by the very people who succumb to its power and are controlled by its very notion of existence furthering the reproduction of its position in believing gender is innate, biological and natural (Burr, 2003). The need for assigning gender is unnecessary and can cause as many problems for some as it is successful for others (Fawcett Society, 2019a; Fawcett Society, 2019b; Emanuel, 2019; Olsen, 2019; Markosyan and Ahmed, 2017; Miller and Grollman, 2015; Yelland and Grieshaber, 1998; Butler, 1988; Intersex Society of North America, no date), however, it is our given right to gender, identity and protection against discrimination by law (Equality Act, 2010; Ronen, 2004; The United Nations, 1990; Humanium, no date; Universal Declaration of Human Right, 1948) therefore, leaving the developmental process of sex and gender for the individual to explore from birth allows for personal growth instead of supressing a person’s fluidity in expression. If it were left to nature then freedom to explore gender comes from within the individual, based on their own innate pull to a position for themselves.

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

Aug 2020

Mark Henaghan

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.

Article 5 of the Convention on the Rights of the Child and the Involvement of Fathers in Adoption Proceedings: A Comparative Analysis

Article

Full-text available

Aug 2020

Brian Damien Sloan

This paper considers the involvement of fathers in decisions about adoption, particularly in circumstances where a mother resists such involvement. It is largely a response to the work of Jill Marshall, who has argued strongly in favour of anonymous birth and adoption for children (without involvement of their fathers) as a choice that can be validly exercised by mothers. The paper argues that Marshall’s views are not obviously consistent with the requirements of Article 5 of the UN Convention on the Rights of the Child, requiring states to ‘respect the responsibilities, rights and duties of parents … to provide … appropriate direction and guidance’ in the child’s exercise of her rights.

MODERN CHALLENGES IN THE IMPLEMENTATION OF THE CHILD’S RIGHT TO KNOW HIS ORIGIN

Conference Paper

Full-text available

Sep 2020

Barbara Preložnjak

The right to know one’s origins means the right to know one’s parentage, i.e. one’s biological family and ascendance and one’s conditions of birth. This right raises some of the hardest legal and ethical issues in the case of adopted children, but also in cases of abandoned or displaced children, children conceived by artificial insemination or of children born out of wedlock. This particular child’s right was increasingly debated in recent years, as it conflicts with the right of the biological parent to remain anonymous. The Article 8 of the European Convention on Human Rights, while ensuring respect and protection for private and family life, guarantees at the same time two opposing rights - the right to privacy and the protection of the personal data and the right to know one’s origins. This legal solution raises the question whether the right to know the origin in case of children who have reached a certain psycho-physical maturity should prevail when it comes into the conflict with the right of the biological parent to remain anonymous? Although the legal instruments protect both rights, in recent years there is aim to promote the child’s right to know their origin rather than the anonymity of the biological parents. To address the issue of conflict between those rights this paper aims to suggest ways in which rights can be balanced against each other to provide the principles guiding the enforcement of the child’s right to known his origin in practice.

A Child's Right to Identity in the Context of Embryo Donation: Part 1

Article

Full-text available

Jun 2024

This article investigates the extent to which the South African Legislature and the international community recognise the right to identity of a child born through embryo donation. A distinction is drawn between embryo donation, gamete donation and surrogacy. Thereafter, the article discusses the multiple aspects which the right to identity comprises, namely: personal, biological, family and siblingship identity. An assessment is made of how these various aspects are impacted by national and cross-border embryo donation arrangements. The Children's Act 38 of 2005, the Constitution of the Republic of South Africa, 1996, the National Health Act 61 of 2003 and the Regulations Relating to Artificial Fertilisation of Persons, in addition to the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) are critically examined to the extent that may be applicable to children born through embryo donation. The article concludes that neither the South African legislative framework, nor the CRC or the ACRWC explicitly upholds the child's right to identity

Habitual Residence: Review of Developments and Proposed Guidelines

Article

Full-text available

Jul 2023

Rhona Schuz

Habitual residence is a key concept in the scheme of the Hague Child Abduction Convention because it determines the applicability of the mandatory return mechanism. However, the concept is not defined, and over the years there have developed different approaches thereto. In recent years, there has been increasing doctrinal uniformity as a result of wide adoption of the hybrid approach. However, there are real disparities in the way in which this approach is applied by different judges and the question of habitual residence remains one of the most litigated issues under the Convention. This article reviews recent case law developments and explains the disparities. It then proceeds to propose guidelines that might assist in increasing uniformity and ensuring that findings of habitual residence promote the objectives of the Convention.

Balancing teacher power and children’s rights: rethinking the use of picturebooks in multicultural primary schools in England [OPEN ACCESS] https://humanrer.org/index.php/human/article/view/3726

Article

Full-text available

Jun 2020

This article offers an autoethnographic reconsideration of a primary school teacher’s practice and children’s interpretation of picturebooks in multicultural primary schools in England. It considers the balance teachers strike between respecting children’s rights to freedom of thought and expression, and wielding their own power as directors of learning. It links key aspects of international human rights law on children to concepts from literacy studies and multicultural children’s literature: representation of minority groups, pictorial interpretation, critical literacy and teacher power. It brings out nuanced interpretations of the picturebook The Arrival as a ‘mirror’ for learners from migrant backgrounds. This mirror may reflect children’s experiences but also offer a frosted, distorted or blank view where young learners do not empathise with characters. We argue that children’s rights within education should include freedom of thought and expression and freedom to interpret literature; teachers should reflect on their intentions when using literature, and not pose barriers to this freedom.

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Facilitating Enforcement of Civil Judgments Across European Union Member States

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Feb 2017

Monique Hazelhorst

This chapter discusses what an efficient EU mechanism for obtaining cross-border enforcement of a civil judgment (‘judgment import’) could look like. It discusses how to balance the judgment creditors’ right to enforcement with safeguards that should ensure that judgment debtors’ rights are respected. To this end, refusal grounds in the State of enforcement should be combined with an effective procedure for obtaining, in the Member State of origin, permission for cross-border enforcement. This chapter begins by identifying the requirements for an effective enforcement procedure that follow from the right to a fair trial. In then discusses the various mechanisms currently in force in EU legislation to determine which most effectively addresses these requirements. It concludes that a mechanism such as the European Enforcement Order, which relies on self-examination by the court of origin, is unlikely to effectively protect creditor’s and debtor’s rights. The chapter also contains a number of suggestions for improvement of the Brussels I bis Regulation, the Maintenance Regulation and the uniform European procedures. On the Brussels II bis Regulation, it concludes that the child’s best interests, rather than the parents’ right to a fair trial, should be paramount

On suffering and the voices of real children in Israeli law. (Hebrew). על סבל וקולותיהם של ילדים ממשיים במשפט הישראלי

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Full-text available

Jan 2008

Ya'Ir Ronen

יש הסבורים שמיותר לדון בשאלת יחסו של המשפט להתנסויות הילד, ועמדתם בעניין זה היא שהמשפט ככלל אינו יכול ואינו צריך לקדם את רווחתו הפסיכולוגית של הפרט, ולכן התשובה לשאלה אם המשפט נענה לסבלו של הילד ברורה מאליה ואינה מצדיקה דיון נוסף. לשיטתם, אין לצפות שהמשפט ייענה לסבל, שכן עומדים בפניו יעדים אחרים. החיבור הנוכחי זה דוחה עמדה נפוצה זו. בסיס תאורטי–משפטי לעמדה נגדית ניתן למצוא באסכולת תורת המשפט הטיפולית (Therapeutic ,)Jurisprudenceהמניחה שהמשפט צריך לקדם את רווחתו הפסיכולוגית של הפרט הן באמצעות הוראות החוק והפסיקה הן באמצעות ההליכים המשפטיים (ראו למשל .)Wexler, 1999אסכולה זו פרצה לתודעה המשפטית הרחבה בעיקר בעשור האחרון של המאה שעברה ( )Daicoff, 2000ובהקשר המשפטי הישראלי היא נידונה בדיון מקיף ראשוני בכינוס שנערך באוניברסיטת בר–אילן בשנת .2007גישה זו שואפת לקדם את התחכום הפסיכולוגי ואת הבין–תחומיות של החשיבה ושל העשייה המשפטית, ולעשות שהמשפט ימלא בחייהם של בני האדם תפקיד אנושי יותר, מרפא, מאחה. התהליך ההדרגתי של שינוי בתפקוד המשפט כמערכת המתרחש בשיטות משפט שונות פותח פתח לתקווה בתחום זה ( .)Daicoff, 2000להלן אבחן את מידת ההיענות של המשפט לסבלו של הילד על בסיס הנחת עבודה שיסודה באסכולת תורת המשפט הטיפולית, שכן לתפיסתי, השאלה רלוונטית למחקר משפטי ולעיצוב מדיניות משפטית. את החיבור הנוכחי אפתח בביאור ובהנמקה של עמדתי, שכאמור, תמציתה כבר הובאה בחיבורים קודמים ( ,)Ronen, 2006ועל פיה שיח זכויות מופשט דוקטרינרי וחסר בלחלוחית אינו מציע מענה ממשי לסבלם של ילדים ולתביעה לצדק שמקורה בסבל הזה. לחידוד התובנה הזאת אסתייע בהגותו של עמנואל לוינס ואציג משהו מתרומתה לעמדה זו. לאחר מכן אבחן את מקומו של המונח "סבל" בחוק ובפסיקה הישראליים. מכאן אעבור לבחינת ביטויים למחויבותו של המשפט הישראלי למניעת סבל. לאחר שאפרוס בפני הקורא היבטים שונים של הסוגיה אתווה תמונת מצב. לסיום אציע כמה תיקוני חקיקה המדגימים את ההשתמעויות היישומיות של מסקנות הדיון

In A Different Voice: Psychological Theory and Women's Development

Book

Full-text available

Jan 1982

Carol Gilligan

“Cultural Defense” and Criminological Displacements: Gender, Race, and (Trans)Nation in the Legal Surveillance of U.S. Diaspora Asians

Chapter

Jan 1996

Kristin Koptiuch

Adoption, Search and Reunion

Book

Jan 2000

The Moral Status of Children: Essays on the Rights of the Child

Book

Jan 1997

MD Freeman

The Politics of Recognition

Article

Jan 1994

C. Taylor

Law's stories: Narrative and rhetoric in the law

Book

Jan 2008

In this notable volume, well-known authorities from the worlds of law and literature take a probing look at how and why stories are told in the law. Such experts as Alan Dershowitz, Martha Minow, Janet Malcolm, Catharine MacKinnon, and John Hollander discuss how narratives presented at trials and in Supreme Court opinions are told and listened to, and how they affect legal thinking and judgment. "Those who are unfamiliar or untutored in narrative and rhetoric will find the contributions accessible and provocative. Those who are more experienced will enjoy sorting out the disagreements among the contributors and acquire a clearer sense of what is at stake here".-Ira L. Strauber, The Law and Politics Book Review. "Law's Stories offers an unusually rich perspective on the developing scholarship of narrative and rhetoric in the law ... The book succeeds in bringing to the forefront of 'law as literature' studies a very crucial aspect of investigation and will undoubtedly become one of the touchstones of law and literature scholarship".-Wendy Chon, New York Law Journal. "Indispensable to anyone interested in legal reasoning".-Choice. "Well edited and highly readable".-Judge Richard A. Posner, University of Chicago Law Review. "Each contribution is impressively individualistic, and the grateful reader can hardly avoid being drawn into strong-minded, largely unresolvable, controversy".-Thomas Morawetz, Connecticut Law Review.

The role of therapeutic jurisprudence within the comprehensive law movement

Article