Paternalism

17 See section 3.2 Paternalism.

18 I.a. The CRC art.19 and art.32.

16 Lastly, the participation part of the CRC grant children a voice. Art.13 gives the child freedom of expression and art.15 gives the child freedom of association and freedom of peaceful assembly (CRC, 1990, art.13 & 15).

2.4.2 The ECtHR and the CRC

The ECtHR and the CRC are independent from each other. The CRC is not mentioned in the ECHR and the ECtHR does not convict any states for breaching the CRC. Nevertheless, the ECtHR still refers to the CRC as a legal argument for children rights.¹⁹

Even though the CRC is used as a legal argument by the ECtHR, it is not a prominent source.

(Skivenes and Søvig, 2016, p.14). As stated in chapter 1, in the work leading up to my master thesis I conducted an interview with Dean Karl Harald Søvig where I asked him about these findings. He then stated that one can divide the ECtHR’s references to the CRC in to two groups.

The first group is when the ECtHR performs a “courtesy visit” in their judgement. This group of references is like an ornamentation to underline the ECtHR’s views and have little to no impact on the outcome of the judgements. The other group of references are the references were the ECtHR changes their view to show responsiveness. The latter is the group that have a real impact on the judgements from the ECtHR.

One of my supportive research questions revolve around the ECtHRs relation to the CRC. I intend to see if the CRC is used by the ECtHR as means to justify its decisions. Discussion surrounding my findings will be addressed in chapter 8 – Discussion and concluding remarks.

Chapter 3 - Building a theoretical framework

Children’s rights are a complex field. Some will even argue that children do not have rights (cf.

Archard, 2015, p.59). When looking at how the ECtHR weigh children’s- and parents’ rights, it is a prerequisite that children have rights. Even so, there are elements that put children in a special position relative to adults and which may potentially influence how the ECtHR assess cases. The common denominator in all the elements presented in the following chapter is children’s rights. The elements presented will act as supporting theories for my theoretical framework.

19 See i.a. case No.2561/94 L v. Finland (2000) or case No.52502/07 Aune v. Norway (2010).

20 Parts of Chapter 3 – Building a theoretical framework is a rewrite of a paper written by me, as part of a preparatory paper to my master thesis. The paper was submitted 25.05.2018 to the University of Bergen as part of a compulsory assignment to pass the subject AORG323.

17 3.1 Rights theory – do children have rights?

As mentioned in the introduction to this section, some will argue that children do not have rights (cf. Archard, 2015, p.59). I will argue that to say children do not have any rights will be a grossly understatement. However, to what extent a child has rights is actually up for debate.

3.1.1 Will theory and interest theory

Will- and interest theory are two competing theories about right-holders. While will theory focuses on the rights to do something, the interest theory focuses on the rights to have something. The two theories are seemingly complementary to each other, but they have a distinct difference: “…what it is to have a right, not what one might have rights to.” (Archard, 2015, p.58-59).

Will theorists see rights as the opportunity to exercise ones’ choice. As a right-holder you are entitled to do as you please. Here there is a different between children and adults. Children do not have the same opportunity to choose for themselves as adults do. There are laws and regulations restricting children’s freedom to do as they please.²¹ When a child legally cannot make a decision on its own behalf, it is the child’s guardians that make the decision.²² When one is not able to decide for one self, in the eyes of will theorists, one have no rights. Ergo, according to will theorists children do not have rights (Archard, 2015, p.59). This is a big shortcoming for the will theorists. Keeping in line with their original thinking, will theorist sought out a way to pass this obstacle. If the guardian act on their child’s behalf in the same manner that the child itself would act, if able, then the child has exercised its rights thru its representative and consequently has rights (Archard, 2015, p.58-59)

Interest theorists do not same hindering as will theorist when looking at children’s rights.

Interest theorists sees rights as a protection, or promotion, of ones’ interests. Since the child has interests, it has rights. A child does not necessarily have the opportunity to make legal decision, even if the decision influences the child interests. Interests theorists states that if a child cannot decide on its own, others have an obligation to further the child’s interest on behalf of the child (Archard, 2015, p.58, Wenar, 2015)..

One of my supportive questions revolve around children’s rights. More specifically, to what extent children are granted rights under the ECHR and how the ECtHR adhere to these rights.

21 This will be addressed further in section 3.1.2 Children’s legal rights.

22 E.g. if you are under the age of 18, you need your guardians’ permission to enter into a contract.

18 If one looks at the assessments done by the ECtHR in care order cases thru the eyes of a will theorist, it is a prerequisite that the child’s guardian act as the child itself would act, in order for the child to have rights. In care order cases brought before the ECtHR there are at least two parties, the biological parents and the domestic authorities. The domestic authorities issue a care order and deprive biological parents of their parental rights, if they believe it to be in the child’s best interests. If one had asked the child if it would like to remain with its biological parents or be placed with an unknown foster family, I would not be surprised if the child in most cases would choose its biological parents. Which would entail that, according to will theorists, the child does not per se have rights.

On the other hand, in the eyes of interest theorists the child has rights if others, i.a. domestic authorities or the ECtHR, fulfil their obligation to further the child’s interests on behalf of the child. Meaning that the child has rights, even if it disagrees with its guardians.

As I will explain later in my thesis, the ECtHR have reiterated time and again that the child’s best interests are central in the Courts assessments. Which entails that children, according to interest theorists, have rights. There are no interviews of the children in the care order cases I am analysing. Therefore, there is no way of confirming if the child agrees with the ECtHRs assessments and thus have rights according to will theorists. For these reasons, for the remainder of the thesis, I will limit myself to the mindset of the interest theorists. Children do have rights.

The question is to what extent?

3.1.2 Children’s legal rights

The CRC states that every human under the age of eighteen is considered a child²³ (CRC, 1990, art.1). Nevertheless, to say that a newborn baby inhabits the same physical and mental state as a seventeen-year-old would be absurd. This is taken in to account when one looks at children’s legal rights. As the child grows older, its rights become more extensive (Barneombudet, 2018).

How different states perceive a child may differ. I.a. in Norway one is not permitted to buy or drink alcoholic beverages²⁴ before one turns eighteen (Alkoholloven, 1990, § 1-5). In Norway’s neighboring country, Denmark, the age limit to buy and drink alcohol is sixteen (Danske Love, 2008, §2).

23 See section 2.4 The Convention on the Right of the Child.

24 In Norway one needs to be 20 to buy, or drink, alcohol which has an alcohol-content higher than 22%. While the age-limit for alcohol-content below 22% is 18 years.

19 The child’s age will play a role in the child’s involvement in care orders. I.a. in Norway adults must, in a greater manner then before, take into account what the child want to do in cases regarding the child when it turns 12.²⁵ At twelve the child no longer can be adopted without its consent (Barneombudet, 2018)

3.2 Paternalism

“Paternalism is the restriction of a subject’s self-regarding conduct primarily for the good of the same subject.” (Pope, 2004, p.660).

Parents and children’s relationship are the classic example of paternalism. The word paternalism derives from the Latin word pater, or paternus, which means father/fatherly. There are many levels and forms of paternalism. All paternalistic decisions are an intervention in a subject’s freedom. There are laws requiring motorcyclist to wear helmets, car drivers to wear seatbelts and there are laws prohibiting drugs. All these laws are paternalistic (Goodin, 1993, p.233). The government has decided that you are not allowed to choose for yourself in these matters, because it is for your own good that you do not use drugs and wear a seatbelt and helmet. Paternalism can be divided in two groups, soft- and hard paternalism. While both soft- and hard paternalism are defined as “…two liberty-limiting principles.” (Pope, 2004, p.667), there are some distinct differences between the two groups.

The difference in soft- and hard paternalism is to what extent it limits a subject’s freedom. Soft paternalism states that if a subject lacks the capacity to make a well-considered choice, paternalistic interference is justified. “People do not always mean what they say; they do not always say what they want; and they do not always want what they say they want.” (Elliot, 1993, cited in Pope (2004), p.669, Pope, 2004, p.667). Soft paternalism enables a subject to make a more informed decision (Pope, 2005, p.685). Pope (2005, p.673) uses an example of a man walking towards an unsafe bridge, as an example of soft paternalism. If you stopped the man from walking out on the bridge, your action would be paternalistic on the base of you restricting the man’s liberty to walk were he pleases. The man may not have known that the bridge was unsafe and therefore lacked the knowledge to make a well-considered decision. You stopping the man is in the man’s best interest and therefore are justified as a soft paternalistic intervention.

25 I.a. where to live if your parents’ divorce.

20 While soft paternalism enables the subject to make a more informed decision, hard paternalism overrides the subject’s decision (Pope, 2005, p.685). Dworkin (1995, cited in, Pope, 2005, p.683-684) presents three definitional conditions for paternalism:

“P acts paternalistically toward Q if and only if…”:

1. “…P’s act is a limitation of Q’s autonomy or liberty.”.

2. “…P acts with the intent of averting some harm or promoting some benefits for Q.”.

3. “…P acts contrary to (or is indifferent to) the current preferences, desires, or values of Q.”.

To make a clear distinction between soft- and hard paternalism in Dworkins definitional conditions, Pope (2005, p.684) added a fourth condition:

4. “…the agent either disregards whether the subject engages in the restricted conduct substantially voluntarily, or deliberately limits the subject’s substantially voluntary conduct”.

Dworkins three conditions could be used for both soft- and hard paternalism, while Pope’s fourth condition can only be considered true for hard paternalism. Hard paternalism, in other words, doesn’t help the subject to make an informed choice, it eliminates to opportunity to choose all together (Pope, 2005, p.685).

Looking at paternalistic decision with regard to the field of care orders, the ECtHR have stated that all other options must be considered before taking a child into public care (see i.a. Moser v. Austria, 2006, para.66). Any measure taken by the domestic authorities influencing the biological parents’ parental rights, are to an extent paternalistic. If the domestic authorities guide the biological parents to make the right decision for their child, it may be considered soft paternalism. However, if the domestic authorities deprive biological parents of their parental rights, they eliminate the biological parents’ opportunity to choose what they believe to be in the child’s best interests, and this may be considered hard paternalism.