Seminar: “Children’s Rights and the Vulnerability of the Child” with Jonathan Herring

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We hope you enjoyed the presentation & lively discussion that followed! Professor Herring has given his permission for us to share with the Network one of the articles mentioned in the presentation:

Herring, Jonathan, and Wall, Jesse. “Autonomy, Capacity and Vulnerable Adults: Filling the Gaps in the Mental Capacity Act.” Legal Studies: The Journal Of The Society Of Public Teachers Of Law 35, no. 4 (2015): 698-719.

This paper explores the distinction between being autonomous and having capacity for the purposes of the Mental Capacity Act. These include where a person misuses affective attitudes in making the decision; where a person’s decision is not authentic to their values; and where the Mental Capacity Act prevents use of the context or outcome of the decision in assessing capacity. These gaps mean that a person can be found to have capacity, even though they are not properly autonomous. This, we argue, justifies the courts’ use of the inherent jurisdiction to protect vulnerable adults who, while having capacity are not able to act autonomously.

Download the article here.

Abstract:
Those who argue that children should not have the same rights as adults typically emphasise the vulnerability of children. It is commonly argued that their vulnerability provides a powerful reason why children need to be protected from harms in ways adults do not. Supporters of the claim that children should have equal rights to adults typically respond by challenging the claim that children are especially vulnerable, arguing that children are far more autonomous than is commonly assumed. In this paper I will argue that a more convincing response is not that children are less vulnerable than is commonly assumed, but rather that adults are more vulnerable than is commonly assumed. In short, the case for equal rights for all people, is better premised on the claim we should treat adults like children, than on the claim we should treat children like adults.

Jonathan Herring has written extensively on criminal, family and medical law and has recently analyzed legal disputes over contact between children and parents and issues surrounding children’s rights.

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