Education,Languages and Linguistic Minorities in the EU: Challenges and Perspectives

Although, with the coming into force of the Lisbon Treaty, two provisions of EU primary law now refer to ‘minorities,’ there are no explicit EU competences and policies to promote the rights of minority groups in education. Nevertheless, EU law has a strong potential to impact the educational rights of linguistic minorities in Member States. To evaluate the right to access education, with an emphasis on the needs of minorities to preserve their identity, this paper first discusses the EU's relevant competences in education (Part II) and then in languages (Part III). Based on the analysis of relevant EU provisions, the paper concludes that EU law is unlikely to offer meaningful protection to linguistic minorities without explicitly endorsing their educational rights. However, to do so, the EU needs a stronger competence in education and minority rights.     

Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

This paper develops a theoretical approach to children's rights in youth justice, located within a wider rights‐based theory of criminal justice which emphasises the centrality of citizens' autonomy. Understanding what is special about children's rights in the youth justice system requires an understanding of how children's autonomy differs from that of adults. One difference is that within the legal system children are not considered to be fully autonomous rights‐holders, because childhood is a time for gathering and developing the assets necessary for full autonomy. These assets should be protected by a category of ‘foundational’ rights. It is argued that an essential component of a rights‐based penal system for children is that it should not irreparably or permanently harm the child's foundational rights. The concept of foundational rights can then underpin and strengthen international children's rights standards, including those relating to the minimum age of criminal responsibility, differential sentencing for children and adults and a rights‐based system of resettlement provision.     

The Trump Effect,Children, and the Value of Human Rights Education

Since launching his presidential campaign, Donald Trump's rhetoric has often been divisive as well as demeaning of selected groups. This article examines the impact of Trump's rhetoric on children and their communities and explores the role that human rights education can play in responding to Trump and forging broader support for human rights. The article reviews the research on human rights education and considers how human rights education can be embedded in broader efforts to educate children. Using children's literature as a case study, the article argues for the importance of mainstreaming human rights education and meeting children where they are, in order to foster greater recognition of and respect for the rights of all individuals.     

UNDERSTANDING CHILDREN'S RIGHTS: THEORY AND PRACTICE

This article discusses the meaning of children's rights in the context of the European Convention on Human Rights and the UN Convention on the Rights of the Child. Both place primary responsibility for the upbringing and education of children on their parents and families. The freedom of parents to bring up their children in their own way is an important component of a liberal democracy founded on respect for individual differences. So if parents believe in moderate corporal punishment as a means of educating their children in their own religious beliefs, is the state justified in banning such punishment either in school or in the home in order to protect the children's rights? This article discusses the children's rights which are protected by doing so.     

Listening to children: Participation rights of minors in Italy and the United States

This article compares laws and policies in Italy and the US regarding children's right to be heard and to engage in the life of the community. Italy has adopted a strong children's rights perspective, informed by the principles of the Convention on the Rights of the Child (CRC). The US, with its pre-modern constitution and resistance to international law, has been slow to recognise children's rights to voice and agency. The US Supreme Court has extended some due process rights to children in criminal court proceedings, but the US lags far behind Italy in recognition of children's rights to participate in civic life and collective decision-making. Child well-being rankings may reflect these differences in attitudes towards children's rights. Italy ranks significantly higher than the US on objective measures of child well-being and Italian children report superior peer and family relationships.     

Challenging statutory limitations on children's education rights: a re-examination of the Canadian Supreme Court Decision in Auton

The 2004 Supreme Court of Canada decision in Auton concerns the right of autistic children to access services held by their parents to be essential to their children's ability to participate as members of a democratic society. It is argued that the child's right to have his or her basic developmental needs met is a constitutionally protected one. Having those developmental needs met engages both education and health rights. In Auton the parents had sought funding for the service at issue from the Ministry of Health, the Ministry of Children and Families (which dealt with mental health services and other particular support programs for the families of disabled children) as well as from the Ministry of Education. The case raises central questions regarding the very nature of education and the constitutionality of a discretionary power of government to set out statutory limitations upon fundamental human rights including education rights.     

Whatever Happened to Canadian Children's Equality Rights? A Reconsideration of the Eaton Special Education Case

This paper reconsiders the Canadian Supreme Court Decision in Eaton and examines its implications for the equality rights of Canadian children in general. The suggestion is made that a 'best interest of the child' standard cannot be met if it involves the violation of fundamental Charter rights. Segregated special education placement, when against the wishes of the parents or guardians and with no s. 1 justification, it is argued, is unconstitutional. The latter gives rise to violations of equality provisions with regard to the student's freedom of association, the right to personal autonomy in decision-making for parents in regards to their child's education, as well as, in some cases, security of the person insofar as the psychological, social and cognitive development of the disabled child is concerned. Such an exclusion from the mainstream, if imposed, it is suggested, does not generally meet the test for 'reasonableness' in accommodation consistent with Charter guarantees. The presumption in favor of integration unless the parent or guardian wishes otherwise is, it is argued, a constitutional imperative based on Charter equality rights rather than a preference for one pedagogical theory (integration) over another (segregated special education placement).     

Children's Participation in Family Law Proceedings: A Step Too Far or a Step Too Small?

The Children (Scotland) Act 1995 established children's rights to have their views considered in family law proceedings. These rights go further than elsewhere in the UK: in requiring parents to consult their children when making any ‘major decision’, in creating a range of mechanisms for children to state their views and through facilitating children becoming party to legal proceedings if they are legally competent. Such rights are not without controversy, either in abstract (Is it in children's best interests to be involved in court proceedings? Should children have such rights?) or in practice (Do children and parents know of these rights and accompanying duties? How do legal professionals judge a child's competency?). This paper explores such controversies, using findings from a feasibility study undertaken with children, parents and legal professionals.     

CHILDREN'S RIGHTS IN EUROPEAN LEGAL PROCEEDINGS: WHY ARE FAMILY PRACTICES SO DIFFERENT FROM LEGAL THEORIES?

Debates about child custody following parental separation often have been framed in terms of a battle between the competing rights of different family members. In the United States, advocates of mothers’ rights square off against proponents of fathers’ rights, with each side claiming to truly represent children's rights. Of course, not all advocates lay claim to children's rights in contact and custody disputes merely as a tactical maneuver. Some experts believe that children are entitled to (and benefit from) their own, independent legal advocate in custody cases. In theory, at least, the position that children lay claim to a third set of independent rights is strongly held in Europe, more strongly than in many U.S. states, because of the adoption of United Nations Convention on the Rights of the Child in Europe, but not in the United States. In this article, we examine children's rights in custody disputes from a European perspective, particularly children's legal right to contact with their parents, as well as the children's right to be heard in custody and contact disputes. We find that, despite differences in legal theory, tradition, and family demographics, European countries ultimately face a familiar reality: Custody and contact disputes are, in reality, more about renegotiating family relationships than they are a matter of a mother's, father's, or child's rights.     

Local Authorities and the Accountability Gap in a Fragmenting Schools System

Reforms to the English education system under the UK's coalition government are building on the so‐called ‘schools revolution’ that previous Labour governments began through legislation increasing both schools' autonomy from local authorities and the system's diversity. Growing numbers of state‐funded schools have converted to academies outside local authority control, particularly since the Academies Act 2010, while opportunities have emerged for ‘free schools’ to be established by various interest groups. The right to establish a school has normative human rights underpinnings, yet the government's policy as a whole is particularly controversial due to the increased risk of social division, instability of local schooling arrangements and significantly reduced local democratic accountability for state funded education. This article questions whether, against a background of three decades of centralising educational reform and a concomitant decline in the role of local (education) authorities, the local public interest in education is being adequately safeguarded.     

Surrogacy,Identity, Parentage and Childrenʼs Rights – Through the Eyes of a Child

In this article I will focus on two important aspects of children's rights which are impacted by artificial reproductive technology (particularly surrogacy); being the rights to identity and the rights to legal parentage. The United Nations Convention on the Rights of the Child acknowledges the importance of a child's right to identity, to be protected from discrimination on the basis of the status or beliefs of the child's parents, legal guardians or family members. For many children born through surrogacy arrangements, they may have only one or no legally recognized parent. The adults caring for them may have parental responsibility orders but this falls well short of providing children with the benefits and protections that legal parentage does. The issue of identity can be complex. Increasingly, states have recognized the importance of children knowing the circumstances of their birth and being able to access biological and genetic information including medical information. From a child's perspective the issues of identity and parenthood are intertwined. Given the importance of identity, more needs to be done to ensure that identifying information about children born as a result of artificial reproductive technology is properly stored and readily accessible for these children. Denying a child legal parentage when there are no concerns about the care being provided by their parents cannot be justified when considered from a children's rights perspective.     

Hands‐Off or Hands‐On?: Deconstructing the ‘Test‐Case’ of Re G within a Culture of Children's Rights

This note challenges the so‐called ‘test‐case’ status of Re G in so far as it attempts to overturn the principle established in Re T that courts should adopt a neutral position when it comes to weighing the merits of different upbringings and the education provided by parents of minority religions. In determining the future upbringing and education of children who had been brought up in a minority religious community, Re G applies a principle of maximising educational opportunity in order to uphold the mother's proposed educational choice and way of life. This note argues that Re G was wrong to do so, should not be regarded as establishing any new principle and that the only relevant principle, both in determining this case and future cases, ought to rest on the psychological well‐being of the child.     

ENSURING AUTHENTIC YOUTH PARTICIPATION IN DELINQUENCY CASES: CREATING A PARADIGM FOR SPECIALIZED JUVENILE DEFENSE PRACTICE

In delinquency courts, juvenile defense attorneys are essential for guaranteeing children's due process rights and encouraging their meaningful participation in the proceedings. Yet, indigent defense delivery systems are largely failing youth accused of committing crimes. This article highlights the importance of developing systems that support the highly specialized practice area of juvenile defense. To protect their clients’ rights and meet their ethical obligations, juvenile defense attorneys must zealously advocate for their clients’ expressed interests and must strategically address the biases and misunderstandings prevalent in delinquency courts. Specifically, defense attorneys must vigorously challenge systemic race, class, and gender injustices; incorporate expert knowledge of youth development into their advocacy; and protect clients’ mental health and educational interests. Such holistic representation promotes rehabilitation and reduces recidivism. Because of numerous obstacles that currently impede defense attorneys from engaging in such exemplary practice, systemic reforms are necessary to support high‐quality defense representation and, ultimately, ensure that youths’ rights are protected.     

Privative clauses in special education legislative schemes: are they constitutional under the Canadian Charter?

This paper suggests that privative clauses in the enabling statutes (Education Acts) governing provincially appointed special education appeal tribunals (SET) are unconstitutional under the Canadian Charter of Rights and Freedoms. It is suggested that ‘final and binding’ SET decisions about children's designation as special needs and their educational placement infringe upon the Charter rights of both parent and exceptional child. The standard for judicial review of SET decisions, given a privative clause, is whether the decision is ‘patently unreasonable’ while ‘correctness’, according to case law, is the appropriate standard when finally determining fundamental rights. Parents of exceptional children in practice have recourse to the courts regarding only procedural rather than substantive issues regarding SET decisions due to the high deference the courts afford any administrat ive tribunal protected by a privative clause. The very high judicial review standard of ‘patently unreasonable’ rather than ‘correctness’ is not consistent, furthermore, with the child's ‘best interests’ or in meeting international obligations to disabled children under the Convention on the Rights of the Child.     

Are Children's Best Interests Really Best? ZH (Tanzania) (FC) v Secretary of State for the Home Department

Although the Supreme Court's decision in ZH (Tanzania) is an important one, as this note explains, it is less novel than many suppose – and is in some ways disappointing. By stressing the importance of immigrant children's best interests, it fails to use this opportunity to promote their Convention rights effectively.     

Voices heard and unheard – A Scandinavian perspective

Children's rights to participate in legal processes concerning them have been a key policy issue for the Scandinavian legislators during recent decades. From the 1980s, there have been frequent amendments to the law to secure the position of the child. Despite numerous provisions stating the right of the child to express his or her views and for these to be considered before decisions are taken, there are continuing obstacles to full recognition of children as legal subjects. Too often children's voices are not heard or not heeded. This article explores the reasons for this and argues that the ambition to promote equal parenthood is one reason for the failure to give the child's views real impact on decision-making in matters concerning children.     

Children's Rights and the Politics of Food: Big Food Versus Little People

This article traces the battle in the United States during the Obama administration, continuing into the Trump administration, to protect children's rights to food. It explores barriers to development of sound, science‐based food policies, including the refusal to recognize food as a human right, anti‐science denialism, hostility toward government regulation, and relative powerlessness of children. It points to the role of a “Big Food Pyramid” composed of powerful food industry and large scale distribution and marketing interests in blocking sound policies in prenatal and infant nutrition, school lunches, SNAP and WIC, the marketing to children of high fat and fructose‐laden products, and campaigns to increase youth fitness. While predicting a continuing assault at the federal level on children's rights to safe and healthy foods, the article highlights the positive role of consumer demand in shaping marketing, labeling and production of food and opportunities for leaders in the food industry and in government at local, municipal and state levels to continue the battle for sound food policies.     

CHILDREN,THE UNCRC,AND FAMILY LAW IN ENGLAND AND WALES

There is no doubt that, overall, there has been a great deal of activity in relation to children's rights under the United Nations Convention on the Rights of the Child (UNCRC) since it was ratified by the UK government in 1991. Of particular significance in the context of family law, however, are the provisions of Article 12, which have in many ways proved to be more problematic than other provisions, not least because, in the context of family law, children's participation rights are necessarily juxtaposed with the long‐standing and hitherto unchallenged rights of parents to make important decisions about family life. The reorganisation in 2001 of the family court welfare services in England and Wales with the creation of the Children and Family Courts Advisory and Support Service (CAFCASS), generated a new impetus for the consideration of children's participation rights and, at an organizational level, considerable progress has been made in embracing the provisions of the UNCRC. More problematic, however, is the acceptance of children's participation in making decisions about their futures by adults using and working in the family justice system. At the level of the courts, judicial attitudes are slow to change and in England, as court judgments often demonstrate, these are firmly rooted in a view of children as being incompetent in such issues; at the level of parents using the system, it is arguable that new discourses about the best interests of the child serve as a proxy for continuing discourses about parents’ rights that have become evident, most recently, in the context of an increasingly influential fathers’ rights lobby; and at the level of welfare practitioners, recent research also demonstrates that, although the rhetoric of children's rights is widely accepted, the willingness and ability to make these real in the context of family proceedings is, for a variety of reasons, less in evidence.     

Voices of minor children heard and unheard in judicial divorce proceedings in the Netherlands

Under Dutch divorce law, children in theory have ample opportunity to make their voices heard: the petition for divorce must state how the children have been involved in preparing a parenting plan; all children aged 12 or 16 (depending on the context) or older have the right to be heard by the judge, and the judge may additionally hear younger children; the court may appoint a guardian ad litem to represent the interests of the child; and the child has the right to seek informal access to the court (by letter or telephone, for example) which may lead to an ex officio decision that changes the arrangements agreed by the parents in a divorce settlement or an earlier judicial decision. In practice, however, there is no guarantee that children's voices will actually be heard in divorce proceedings. Notably in the case of separation after an informal relationship (other than marriage or registered partnership) the opportunities given to children to be heard are often a dead letter.     

Children Fleeing Domestic Violence to Emergency Accommodations: Education Rights and Experiences

Domestic violence forces many families to flee to emergency accommodations. This article focuses on children’s experiences of schooling and life at confidential addresses, and to what extent their legal right to education in the face of domestic violence is safeguarded in practice. Data were collected from interviews with 20 children aged 6–16 with multiple relocations at Norwegian refuges for abused women. Interviews were coded using the constructive approach to grounded theory. Data were analyzed using Antonovsky's theory and interpreted within the context of Norwegian and international law, examining the rights of children to education versus the legal rights of abusers. The findings indicate that children’s rights to education and a life without violence may be sacrificed in favor of due process for abusers. The article suggests concrete protective measures to help safeguard these rights, and calls on policymakers and support agencies worldwide to rethink their policies and practice.