Lessons for children’s rights from disability rights?

This chapter examines whether the field of children's rights can glean any useful insights from recent developments in the field of disability rights

Mental Health Act Guardianship and the Protection of Children

Re F (Mental Health Act: Guardianship) [2000] 1 FLR 192, CACourt of Appeal (30th September 1999). Evans, Thorpe, and Mummery LJJ. Judgment of the Court given by Thorpe LJ.This case arose as a spin-off from what on the face of it was a relatively straightforward application for care orders, made by the Social Services Department of the London Borough of Hackney (‘LBH’), in respect of eight siblings. The case is of interest to mental health lawyers by reason of the attempt of LBH to use creatively elements of the Mental Health Act 1983 (‘the 1983 Act’) regime to plug apparent gaps in the powers available to local authorities and the courts in theChildren Act 1989. This entailed the court’s consideration of various provisions of the 1983 Act, as they relate to persons with learning difficulties. This case will also be of interest to family lawyers, as the boundary between family law and mental health law, such as it is, was also considered by the Court of Appeal. Moreover, it is worth remembering that the backdrop to all judicial activity in the field of mental health law at present is the on-going root-and-branch reform of this area of law. As will be discussed below, this case adds to a growing number that highlightdeficiencies in the operation of the current regime as it applies to adults with learning difficulties. Finally, although there is little direct discussion to be found in the law report of the judgment of the Court of Appeal, this case raises broader issues of human rights; a topic that none can afford to ignore in light of the Human Rights Act 1998

Policing Care in the House of Lords

The rights and interests of carers, and those in receipt of care, are related, directly and indirectly, in myriad, complex and contradictory ways. For example, poor pay and working conditions for carers is more likely than otherwise to lead to demotivated staff, with a corollary negative impact also on the rights and interests of those in receipt of care. Likewise, a carer working in good conditions for good pay is more likely than otherwise to provide a better quality of care. Sometimes, however, it is not the case that what is good for the care recipient is good for the care provider; and when decisions as to what constitutes the ‘good’ are made by third parties, such as governments, there is always the possibility that the balance between the rights and interests of the two groups will be inappropriately drawn

A clash of conventions? Participation, power and the rights of disabled children

This paper considers the neglected topic of the relationship between the Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child, with regard to the participation rights of disabled children. It analyses key articles in both conventions and considers relevant General Comments from both convention committees (the Committee on the Rights of the Child or ‘CCRC’ and the Committee on the Rights of Persons with Disabilities or ‘CCRPD’), and their interpretation by academic contributors. The paper argues that much work on this topic fails to develop an adequate 16 understanding of power relations, and that the ‘social model of disability’ which underpins the disabilities convention, when applied to ‘childhood’ (as opposed to ‘children’) suggests that the implications of that convention for the participation rights of all children, not only disabled children, are profound. This is because the disabilities convention rejects the relevance of tests of capacity and ‘best interests’ for disabled adults, for reasons which are equally germane to disabled children, and children in general. The paper concludes with discussion of the difficulties in implementing the insights derived from the analysis of the disabilities convention in substantive law in the absence of a right to freedom from age discrimination for children, and suggests other, less far-reaching, reforms that could be made this notwithstanding

The Construction of Gender and Sexuality in the Approach of Key International Law Actors to the Circumcision of Children

This article analyses the approach of key international actors to the circumcision of children, seeking, first, to understand why the policy towards the circumcision or genital cutting of girls is so different from that towards boys. As part of this project, the article considers the literature on the situation in international law, concluding that the legal position is unclear and debatable. The article notes, however, that the policy difference is justified not by key actors by reference to international law but instead by reference to their theoretical understanding of how dynamics of gender and power infuse the genital cutting of girls. The article suggests that this approach is deficient because it can only compute inter-gender harm and not intra-gender harm, with the consequence that it fails to protect boy children from harms, which a better crafted theoretical model of gender and sexuality would capture

Patients' duties: the missing element in European healthcare law

This chapter asks why there is such a developed notion of patients' rights, but such an underdeveloped notion of patients' duties. It also considers the advantages and disadvantages of formally stating patients' duties in legal form

The Power of Feminist Judgments?

Recent years have seen the advent of two feminist judgment-writing projects, the Women’s Court of Canada, and the Feminist Judgments Project in England. This article analyses these projects in light of Carol Smart’s feminist critique of law and legal reform and her proposed feminist strategies in Feminism and the Power of Law (1989). At the same time, it reflects on Smart’s arguments 20 years after their first publication and considers the extent to which feminist judgment-writing projects may reinforce or trouble her conclusions. It argues that both of these results are discernible—that while some of Smart’s contentions have proved to be unsustainable, others remain salient and have both inspired and hold important cautions for feminist judgment-writing projects

Casenotes: Human Rights and the Provision of Residential Care under the National Assistance Act 1948

YL v Birmingham City Council and OthersHouse of Lords 20 June 2007[2007] UKHL 2