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Philosophical Foundations of Children's and Family Law$
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Elizabeth Brake and Lucinda Ferguson

Print publication date: 2018

Print ISBN-13: 9780198786429

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780198786429.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 22 January 2022

An Argument for Treating Children as a ‘Special Case’

An Argument for Treating Children as a ‘Special Case’

(p.227) 11 An Argument for Treating Children as a ‘Special Case’
Philosophical Foundations of Children's and Family Law

Lucinda Ferguson

Oxford University Press

This chapter’s argument stems from the premise that legal language should speak for itself. The ‘paramountcy’ principle suggests the prioritisation of children’s interests, and ‘children’s rights’ suggests some aspect of distinctiveness to children’s interests. But there is academic consensus in respect of both that children’s interests cannot and should not be prioritised over those of others. This chapter examines the justification for the contrary perspective, and for treating children as a prioritised ‘special case’ in all legal decisions affecting them. Four key counter-arguments frame the discussion. First, the ‘social construct’ objection: as a social construct, childhood cannot sustain the prioritisation of children’s interests over those of others. Second, the ‘vulnerability’ objection: children’s vulnerability is either not unique or suggests dependency or interdependency, not prioritisation. Third, the ‘family autonomy’ objection: parents’ rights and the family unit justify deference of children’s interests. Fourth, the ‘equality’ objection: equal moral consideration makes prioritisation unjustifiable.

Keywords:   paramountcy principle, best interests, children’s rights, childhood, social construct, vulnerability, parental rights, equality, equal moral consideration

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