The (Dis)Ability of Child Rights?

3.1 Semantics and Models

‘The Lord Chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns’.²⁰

‘The disabling effects of language is not something that is unique to disabled people,’²¹ and children continue to have their legal agency limited through the language of disability. The disabilities of childhood so prescribed by law trace their origins back to the eighteenth century, at least. In Sir William Blackstone’s four volume Commentaries of the Laws of England (1765–69), the best-known description of the doctrines of English law, we find the juxtaposition of infancy with mental disability, as well as references to the disabilities of an infant, one under twenty-one years of age: ‘Infants have various privileges, and various disabilities: but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts.’²² Children could only secure themselves from others’ hurting them thorough their guardian, who could sue on the child’s behalf, and it was ‘generally true, that an infant can do no legal act,’²³ with some exceptions,²⁴ which continue into the present day, in common law jurisdictions.²⁵ The language of the disabilities of childhood has continued unabated into our time, with its inverse – of people with cognitive disabilities being referred to as children – being equally robust, well into the twentieth century: ‘Indeed, through the middle of this century, legal authorities and public majorities treated the mentally retarded as eternal children.’²⁶

Historically, in the West, people with disabilities have been viewed as objects of ridicule, from being used as court jesters in the Middle Ages, to being objects of bemusement and paraded about as public spectacle as late as the twentieth century.²⁷ Markedly, under the doctrine of so-called ‘ugly laws’, from the late 1860s until the 1970s, several cities in the United States rendered it illegal for persons who were ‘unsightly’ or ‘unseemly’ to appear in public, punishable by fines.²⁸ Disability theory has heralded fundamental changes in legal thought with regard to people with cognitive disabilities, specifically, by unpacking the term of its sematic negative associations, and through a shift from the so-called medical to the social model of disability. Both of these developments of disability theory can be used as a filter through which the disabilities of children can be reformulated, or at least seen in a different light. Much debate exists in the disability discourse over which terminology to use when referring to people with disabilities, a result of the disjointing of what is referred to as the ‘impairment’ from the disablement of the individuals concerned, ‘whereby impairment refers to a biological or physiological condition that entails the loss of physical, sensory, or cognitive function, and disability refers to an inability to perform a personal or socially necessary task because of that impairment or the societal reaction to it.’²⁹ These two also mostly correspond with another definitional polarisation, between disability as personal tragedy versus disability as oppressive social practice; as stated by Michael Oliver, one of the founding fathers of disability models, ‘while it cannot be claimed that there has been much grand theorising about disability, it can be argued that almost all studies of disability have a grand theory underpinning them. That grand theory can be characterised as “the personal tragedy theory of disability”,’³⁰itself a product of the nineteenth century, and reflecting the medicalisation of disability, whereby people with disabilities were now deemed worthy of treatment, and to be pitied. Scholarship in disability studies has suggested that the medical model of disability has its roots in the nineteenth century. Disability studies scholar Lennard Davis argues that ‘the social process of disabling arrived with industrialization and with the set of practices and discourses that are linked to late eighteenth- and nineteenth-century notions of nationality, race, gender, criminality, sexual orientation’.³¹ In highlighting the importance of definitions, Michael Oliver characterises the polarisation of what he terms the tragic and the oppressive views of disability; with regard to the former, if disability is seen as tragedy ‘then disabled people will be treated as if they are the victims of some tragic happening or circumstance,’ and ‘[t]his treatment will … be translated into social policies which will attempt to compensate these victims for the tragedies that have befallen them.’³² This speaks to the critique of the medical model, wherein lies, at its heart, an ablest ideology that depicts people with disabilities as deficient, and disability as ‘a property of the individual body’ that needs to be overcome.³³ The ‘ideology of ability’ as termed by Tobin Siebers ‘defines the baseline by which humanness is determined, setting the measure of body and mind that gives or denies human status to individual persons.’³⁴

As a dominant or hegemonic ideology, ableism is so taken for granted that it remains unconscious and invisible to most people, even though it constitutes an overarching regime that structures the lives of people with disabilities.³⁵

Disability studies have efficaciously brought the ideology of ableism out of the shadows, and into the spotlight.

Alternatively, if defined as social oppression ‘disabled people will be seen as the collective victims of an uncaring or unknowing society rather than as individual victims of circumstance. Such a view will be translated into social policies geared towards alleviating oppression rather than compensating individuals.’³⁶ Also known as the social model, such a view ‘has resulted in unparalleled success in changing the discourses around disability,’³⁷ but it has not escaped criticism, and ‘it could be argued that in polarising the tragic and oppressive views of disability, a conflict is being created where none necessarily exists,’ as disability ‘has both individual and social dimensions.’³⁸ This is reflected in one of the internal critiques of the social model, which has stemmed from people with disabilities themselves, such as the denial of the pain of impairment.³⁹

3.2 The Revolution of Personhood and the Remaking of the Human Condition

Disability theory as articulated by Gerard Quinn invites us to make rights subservient to the human condition ‘in order to make them both honour and serve that condition.’⁵¹ Quinn and Arstein-Kerslake interrogate powerful ‘myths’ speaking to the human condition: ‘human rights seem to commit us to an exaggerated caricature (a ‘myth system’) of the human condition: the rational, self-directing, wholly autonomous individual possessing moral agency unto him/herself. The spacial image at play is that of the masterless man freely choosing his/her own conception of the good and wandering purposively.’⁵² This myth system can be traced back to the dreams of reason during the Enlightenment, which venerated the individual as defined by his ability to reason and ability to consent – ideas that then made their way into the legal canon through fathers of the common law such as Blackstone. This liberal foundationalism ‘facilitates, is founded on and highly prizes individual “auto-nomy”. Our Enlightenment past compels us to assume that this person – this masterless man – this atom colliding in beneficial ways with other atoms – is rational.’⁵³ Disability theory and its CRPD Article 12 refraction has been revolutionary in its insistence of the full legal personhood or legal agency – inclusive of both legal personality and legal capacity – of people with cognitive disabilities, those historically analogised as infants. As is the case with children, at first glance, ‘the idea that persons with even severe cognitive disabilities may, despite their disabilities, retain full legal capacity might appear counter-intuitive.’⁵⁴ Nonetheless, in this we are witnessing the formation of a new international legal norm of universal legal agency. What the CRPD ‘brought to the surface was an insistence on the capacity of all persons with disabilities to forge their own destinies, a frank acknowledgment of shared personhood and of the myriad of supports – formal and informal – that we all rely on to help us forge our own pathways.’⁵⁵ As a result, ‘[a]t least at the level of ideas, persons with disabilities – and especially those with intellectual disabilities – are now beginning thanks to CRPD to emerge into full personhood.’⁵⁶ As has been previously advanced, this reflects a movement from status to agency, as radical as the movement from status to contract,⁵⁷ which now gives at least standing room to children on the bandwagon of universal legal agency. To what extent are children considered in the personhood transformation as articulated by the disability theorists detailed above will now be considered.

3.3 At the Intersections of Disability and Childhood

Children are unduly disadvantaged through their unique circumstances at the intersections of legal and developmental ‘disability’. However, as the previous sections exemplify, the sea change in disability theory brings with it new pathways for reimagining the legal enablement of children with agency: with both legal personality and legal capacity. Quinn makes mention of intersectionality as one of the ‘children’ of the CRPD:

The more holistic conception of personhood in the CRPD created space for a broader posture to intersectionality than in other instruments … Article 7 focusses on the special vulnerabilities of children with disabilities. The CRPD is not a perfect instantiation of intersectionality. But it at least makes a stab in the right direction.⁷¹

As has been seen, it is far from clear how Article 7 is to be read in light of the other key innovations of the Convention such as Article 12; that is to say, for example, will children be denied the expansion of legal personhood personified by Article 12, or will they too be beneficiaries? On the other hand it can be argued that by relegating women and children to separate provisions the CRPD is falling into the same trappings of identifying groups with ‘special needs’ and thereby maintaining the independent, single-ground discrimination model that the intersectionality thesis seeks to dismantle. At the very least, this legal instrument opens the space for the interrogation of these issues. Nonetheless, it is not just in the express provisions of the CRPD that address special groups that may be cumulatively disadvantaged, such as women and children, that lends weight to an intersectional enquiry. In the theory of ‘complex positionality’ put forward by disability rights theorist Siebers, we have intersectionality embodied:

Additionally, coming to an understanding of intersecting minorities demands that one imagine social location not only as perspective but also as complex embodiment, and complex embodiment combines social and corporeal factors.⁷²

As opposed to the separation into discrete identities – the ‘privileged’ minority groupings such as women and children having their own provisions – codified in the CRPD, complex embodiment takes shape in that place between representation and the body:

While identities are socially constructed, they are nevertheless meaningful and real precisely because they are complexly embodied. The complex embodiment apparent in disability is an especially strong example to contemplate because the disabled body compels one to give concrete form to the theory of social construction and to take its metaphors seriously.⁷³

So, when a child is denied the legal agency to seek redress for rights violations, to use Siebers’ language ‘a social construction is revealed and must be read’. We would then be required to ‘elaborate claims about social construction in concrete terms’ and to ‘locate the construction in time and place as a form of complex embodiment.’⁷⁴ This is what I have endeavoured to achieve by explicating the strong ideological undercurrents in the legal disabilities of children. Like Siebers:

… my analysis here will always take it as a point of departure from which to move directly to the elucidation of embodied causes and effects. Oppression is driven not by individual, unconscious syndromes but by social ideologies that are embodied, and precisely because ideologies are embodied, their effects are readable, and must be read, in the construction and history of societies.⁷⁵

Childhood disabilities stemming from the embodied vulnerabilities of children, have been a constituent part of Western liberal legal ideology from the period of the Enlightenment onwards, and they continue to occupy a place in laws regarding legal capacity. The idea that the human condition is one where we are all complexly embodied necessitates an intersectionality perspective that is yet to be reflected in human rights instruments, not least the CRPD. Nonetheless, a disability studies perspective offers a rich tapestry on which to pin ideas of the expansion of what it means to be human, and how that translates into a radical reimagining of legal capacity that can ultimately embrace children.

4.1 Exemplifying the obstacles faced by children in court proceedings

By way of an example of the challenges children face in litigation, we can turn to the case law of the European Court of Human Rights where, though applications have been accepted by and on behalf of children irrespective of their age, such cases are sparse, and ‘[m]uch European case law derives from litigation initiated by parents or other legal representatives of children, given the limited legal capacity of children.’⁸³ One such example before the European Court of Human Rights is the case of Stagno v. Belgium (2009)⁸⁴ which is illuminating to review. In 1987 the applicants were granted a payout by the company Fortis AG as beneficiaries of their deceased father’s life insurance, which their mother, being the statutory administrator of her minor children’s property, was paid by the insurer. Subsequently, the mother deposited the funds in a savings account that she then exhausted within less than a year. At that time, the children did not have the capacity to bring a suit against either their mother or the insurance company, and it was ten years later, when the applicants were 18 and 20 years of age respectively that they brought a suit against their mother⁸⁵ and an insurance company (Fortis Banque). The Belgian trial Court declared the applicants’ action against company inadmissible on the ground that the three-year limitation period was applicable, to any claim arising from an insurance policy, regardless of the capacity of the parties. The applicants appealed, unsuccessfully, in 2004, and the Court of Appeal rejected their argument that since they had been minors, it had been legally impossible for them to act at the relevant time. A second appeal on the points of law in 2006 was dismissed on the ground that the aim pursued by the limitation period (namely, to avoid the disappearance of evidence and means of verification) could not be fulfilled if it were open to insured persons or their beneficiaries to bring a claim many years after the event on which it was based. The applicants argued that they should not be penalised for failing to apply, at the ages of eight and 10, for the appointment of a special guardian, and that they had found themselves de facto in a situation where they had no legal representative through whom they could have asserted their rights. The applicants did not succeed at this appeal either, and the Court of Appeal held that it was not appropriate to allow different treatment for persons without legal representation. Thus, an action was brought by the applicants complaining that the money from their deceased father’s life insurance had been partly squandered by their mother while they were still children, had been rejected at the domestic level.

Consequently, in 2006, the applicants submitted an application to the European Court of Human Rights, upon which a decision was reached in 2009 when the applicants were in their early thirties. The European Court of Human Rights found, by 6 votes to 1, a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights. Importantly, the Court framed the case as a limitation period case, and reiterated that statutory limitation periods pursued the legitimate aim of ensuring legal certainty, as a time limitation on claims protected potential defendants from belated complaints and meant that the courts would not have to give judgments based on evidence that had become uncertain or incomplete with the passing of time. Looking to the specific issues presented by the facts of the case, the Court considered that it had been practically impossible for the Applicants to defend their property rights against the company before reaching majority, and when they did come of age, their claim against the company had become time-barred. In view of this, the Court held that the strict application of a statutory limitation period, without taking into account the particular circumstances of the case, had prevented the Stagno sisters from using a remedy that in principle was available to them. That limitation on their right of access to a court was disproportionate in relation to the aim of guaranteeing legal certainty and the proper administration of justice, in violation of Article 6 § 1.

As demonstrated in Stagno v. Belgium, rather than tackling the issue of the legal standing (or agency) of children directly, the European Court of Human Rights missed that opportunity by choosing to approach the case by way of the procedural rules of limitations. What was offered was a Band-Aid remedy, applying a light bandage of relief rather than tackling the substantive issue of legal incapacities of children to bring suits for violations of their human rights. Further, as this case demonstrates, the length of time it takes may offer some inroads as to why so few cases are brought by children. Technically, by the time the case is exhausted at the domestic level and it sluggishly makes its way to the international level, the children are well into adulthood. The Stagno children, aged eight and 10 when the violations occurred, were aged 30 and 32 respectively when the decision was issued by the European Court of Human Rights. Another reason as to why are there so few cases brought by children may be access to justice, which ‘remains a tremendous challenge for children,’ as pointed out in the 2013 Report of the United Nations High Commissioner.⁸⁶ A discernible cause is that ‘Children have no capacity to act without their parents or legal representatives’ and they are ‘sometimes not accepted or seen as rights holders, but rather as subject to the good will of adults, who may not act in the best interest of the child’.⁸⁷

4.2 Ideological barriers to the legal agency of children

One reason for the marginal number of cases brought by children might very well be due to the permeation of the ideology of western liberal individualism, buried beneath legal positivism and assumptions of disability, in legal discourse and in society more broadly. Thus, in order for the progression to the fourth stage from status to agency at the domestic level, there has to be a concomitant change in the liberal legal ideologies informing the law, and in everyday social relations beyond the judicial process. The latter reflects the heavy socio-cultural baggage, reflecting what Steven Lukes would term ‘invisible power’ – ways of seeing that escape legal attention because it is part of our unquestioned socio-legal repertoire. Lukes referred to this as ‘the most insidious use of power’ because it keeps conflict from emerging in the first place, where A ‘exercises power over [B] by influencing, shaping or determining his very wants,’ through indoctrination, acculturation and socialization.⁸⁸ As to how invisible power is exercised, Hinson and Healey write that it ‘is exercised in part through control of the institutions that shape and create meaning: religious institutions, the media, television, mass consumer culture, popular ideas about government and about workers and bosses, etc.’ Further, Hinson and Healey evocatively capture the powerlessness that these assumptions induce in children:

When those who have the power to name and to socially construct reality choose not to see you or hear you … when someone with the authority of a teacher, say, describes the world and you are not in it, there is a moment of psychic disequilibrium, as if you looked in the mirror and saw nothing. It takes some strength of soul — and not just individual strength but collective understanding — to resist this void, this non-being, into which you are thrust, and to stand up, demanding to be seen and heard.⁸⁹

Judges and decision makers, too, wield this tool of constructing realities for children. It is this ‘collective understanding’ that this paper seeks to advance as a means of countering the powerlessness of children. That such changes are a necessary component for the effectiveness of legal change was observed by law and society theorist Marc Galanter in his seminal Haves article,⁹⁰ where substantive law changes are not likely to be determinative: ‘Rule change is in itself likely to have little effect because the system is so constructed that changes in the rules can be filtered out unless accompanied by changes at other levels.’⁹¹ Accordingly, changes in the laws are unlikely to shape decisively the distribution of power in society,⁹² without the attendant changes in socio-cultural underpinnings of the laws.

Programs of equalizing reform which focus on rule-change can be readily absorbed without any change in power relations. The system has the capacity to change a great deal at the level of rules without the corresponding changes in everyday patterns of practice.⁹³

Thus, changes in law without the concomitant changes in power relations and everyday patterns of practice cannot but be ineffective.

Disability theory and critical disability studies have been instrumental in de-stigmatising its terms of reference through unpacking the ideologies underlying disability in law and society. As argued there are ‘striking parallels between the ideology of ableism in disability theory as such, and the ideology of disability within child rights discourse and law,’ which were elucidated in Part 3.1 on the Semantics and Models in disability studies. ‘The semantics of legal ‘disabilities’ themselves are ideologically driven, and need to be dismantled in discussing child rights.’⁹⁴ Thus, ‘given the limitations of legal change, the reflection of this norm [of universal legal agency] at the domestic level will not be realised until the legal ideologies underpinning denial of legal standing to children are unearthed, challenged and shown to be wanting.’⁹⁵

In order for substantive legal change to be rendered effective, the socio-cultural baggage of liberal legal ideology, with its associations of the incapacities of the child justifying the limitation of legal agency, needs to be challenged. Offered here is not a survey of Western liberal states and their respective laws governing the legal agency of children; it is probably fairly safe to assert that few (if any) Western liberal states afford legal agency to children to be civil complainants. Few may offer the possibility for children to become parties to custody-related proceedings. Under the Children’s Act (1989) in the UK, the ‘most far-reaching change to child law’ in the twentieth century,⁹⁶

children can apply for a range of orders on issues affecting their lives if they can convince the judge that they understand the consequences of their actions. The much-publicised cases of children vetoing adoption orders and ‘divorcing their parents’ to live with grandparents or foster parents, result from the recognition that children can make rational decisions and they ought to be allowed to take legal action on their own behalf when they can demonstrate this.

Even when granted, legal agency is limited to children who can demonstrate the requisite competence. One exemption may be South Africa, where Section 14 of the Children’s Act 2005 states that ‘Every child has the right to bring, and be assisted in bringing a matter to a court, provided that matter falls within the jurisdiction of that court’.⁹⁷ Such a provision raises the possibility of children instituting proceedings in court. However, in their analysis of the relevant common law rules applicable to a child party to litigation in South Africa and the extent to which they have been amended by Section 14, Boezaart and Bruin find that a child cannot yet litigate in person without the assistance of her parent or guardian. They conclude, bleakly for our purposes, that although Section 14 opens the door for every child to bring a matter to a court that has jurisdiction, it does not ‘remove the common law restrictions imposed on a child’s capacity to litigate’ which thus far have not been amended.⁹⁸

The judiciary in domestic courts will have to go some way towards heralding the shift in international law into the domestic legal landscape. A change in the pervasive legal liberal philosophy – and ideology – will, it is submitted, have to take place for the movement from status to agency at the domestic level. Constitutional litigation is but one way towards such a change. Using Richard Cortner’s classification scheme of the litigants in constitutional cases, as well as their tactics, children are ‘disadvantaged litigants’ defined as being:

highly dependent upon the judicial process as a means of pursuing their policy interests, usually because they are temporarily, or even permanently, disadvantaged in terms of their abilities to attain successfully their goals in the electoral process, within the elected political institutions or in the bureaucracy. If they are to succeed at all in the pursuit of their goals they are almost compelled to resort to litigation.⁹⁹

Children are also an example of Cortner’s ‘aggressive’ litigant,¹⁰⁰ as opposed to the ‘defensive’ litigant, differentiated by whether they advocate constitutional change or they depend on the status quo in order to achieve their goals:

A defensive litigant does not seek the creation of new constitutional interpretations by the courts. His purpose is to pursue a strategy which will succeed in convincing the courts that prevailing constitutional norms, already favorable to his interests, should be applied. Such a litigant seeks stability, not change, in constitutional policy. The aggressive litigant, on the other hand, is one who finds the prevailing constitutional policy unfavourable and therefore is forced into pursuing an aggressive strategy by seeking innovative interpretations of the Constitution from the courts in order to succeed.¹⁰¹

It is clear that children fall into the latter category. Being politically disenfranchised results in their need to resort to the law as a means of attaining social change. This is costly, time-consuming, and may result in losses.

A final characteristic of the aggressive litigant in constitutional cases which should be noted is the fact that such litigants probably supply a high proportion of the losers in constitutional cases. This is due to the novelty of the demands which they make upon the judiciary and because, as Justice Holmes once said, judges ‘…commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs repose of mind, than to fall in love with novelties.’¹⁰²

If only because any proposed alteration to the status quo may rattle the attitudinal cages of the judiciary, the high value of aggressive litigants in the judicial process is vindicated:

It may well be that in losing a substantial portion of their cases however, aggressive litigants educate the Justices so that their ‘repose of mind’ is not so much disturbed by ideas which, because they have been repeatedly presented to them, have ceased to be novelties to be hated on sight. In any case, when aggressive litigants do succeed, the result is often an historic change in constitutional law. They are, therefore, perhaps the most important class of litigants operating in the judicial process.¹⁰³

Changing the individual ‘repose of mind’ of the Justices is one significant step closer to unseating entrenched assumptions about legal subjectivity. And Cortner’s finding that, as aggressive litigants, children are vital in the initiation of change in constitutional policy that represents the pathway to attitudinal changes in the judiciary, is no less significant. However, if anthropologist Mary Douglas is correct about locating assumptions, not in individuals but rather in institutions, challenging the intractable assumptions that deny legal subjectivity to children ‘will require more than fresh thinking by individuals. Individual efforts to think differently about difference will be curbed or stymied by existing institutionalized patterns of thought.’¹⁰⁴