Children, Young People, and the Law (HSC SSCE Legal Studies): Revision Notes

Children, Young People, and the Law

Introduction to children and young people in the legal system

Children and young people represent society's future, and the law recognizes that they require special protection and support to develop properly. The way legal systems treat minors reflects society's commitment to nurturing their social, emotional and cognitive development. This protection is essential for maintaining a fair and just community where vulnerable members can thrive safely.

The law treats children and young people differently from adults because they are considered to lack the full capacity to make informed decisions about complex matters. This differential treatment serves multiple purposes: it prevents exploitation of minors, protects them from making decisions they may not fully understand, and protects others who might be disadvantaged by dealing with someone who lacks full legal capacity.

Legal definitions of children and young people

Understanding how the law categorizes minors is essential, as different legal rights and responsibilities apply at different ages. The definitions vary depending on the legal context and jurisdiction.

Children are generally defined as persons aged $15$ years and younger, though this can vary depending on the specific legal context being considered. This definition acknowledges that younger persons require more comprehensive protection under the law.

Young people in New South Wales specifically refers to persons aged between $16$ and $18$ years. This intermediate category recognizes that older minors have some increased capacity for decision-making while still requiring certain protections.

International and national standards

Article 1 of the Convention on the Rights of the Child (CROC) establishes that anyone under the age of $18$ is considered a child unless national law specifies an earlier age. This international standard provides a baseline for protecting minors' rights globally.

The Children and Young Persons (Care and Protection) Act 1998 (NSW) provides the New South Wales definition of a young person as someone aged between $16$ and $18$. This Act recognizes that this age group requires specific legal considerations distinct from both younger children and adults.

Historical status of children and young people

Lack of legal rights and protection

Throughout most of history, children possessed no independent legal rights until reaching adulthood. They were often viewed as property of their parents rather than individuals with their own interests deserving protection. This situation persisted until the late $19$th century when growing awareness of children's suffering prompted significant legal reforms.

Living conditions in the 19th century

During the $19$th century, children from poorer families faced extraordinarily harsh conditions. They lived in overcrowded, dirty housing with inadequate sanitation, making them constantly vulnerable to disease. The infant mortality rate reached as high as $50$ per cent for children in their first year of life, reflecting the dangerous environment many faced.

Violence was a regular part of many children's lives. For those living in poverty, crime became a significant influence during their formative years. Some children joined gangs, engaged in criminal activity, or turned to prostitution simply as survival strategies until they could reach adulthood.

Child labour and exploitation

Children were routinely forced to work from very young ages, particularly with the advent of the industrial era. Factory work became common for children, who labored long hours operating dangerous machinery for extremely low wages. The physical demands were severe, and children regularly developed work-related diseases from hard labor or exposure to industrial chemicals without any protective equipment.

Criminal justice treatment

The legal system treated children who committed crimes exactly the same as adult offenders. The concept of doli incapax – meaning "incapable of wrong" – did not exist in early legal systems. This Latin term refers to the presumption that a child under $10$ years of age cannot be held legally responsible for their actions and cannot be guilty of criminal or civil offences.

Education and social class

Public education did not exist as a concept during much of this period. The education a child received depended entirely on their family's wealth. Wealthy families could hire private tutors or governesses to teach children at home, or send boys to exclusive boarding schools. Poor children received little to no formal education, perpetuating cycles of poverty and disadvantage.

Educational reforms

In $1870$, the Elementary Education Act was passed in England, introducing compulsory universal education for children aged $5$–$13$ years. This landmark legislation represented a major shift in how society viewed children's rights and needs.

In Australia, education initially fell under the Church of England's responsibility for colonists. However, disagreements arose between Anglicans, Presbyterians and Catholics about which religious denomination should control education. This conflict led each Australian colony between $1872$ and $1895$ to pass Education Acts making primary education a state responsibility. These Acts established that education would be "free, compulsory and secular" – three principles that remain fundamental to Australian public education today.

Despite these legal changes, many parents with limited economic means initially resisted sending their children to school because they needed them to work and contribute to family income. Only with the introduction of minimum working age laws did children begin attending school regularly.

Growing awareness of children's needs

By the end of the $19$th century, governments, religious institutions and charitable organizations began recognizing that children required specific legislation to protect them from violence and abuse. This awareness marked the beginning of a more comprehensive approach to children's rights, acknowledging that they needed opportunities to develop socially and emotionally, not just physically survive.

Recognition of children's rights

Convention on the Rights of the Child (CROC)

The UN Convention on the Rights of the Child (1989), commonly known as CROC, represents the most comprehensive international treaty addressing children's rights. This document sets out extensive rights covering all aspects of children's lives, including civil, political, economic, social and cultural rights.

Core principle: best interests of the child

CROC's fundamental requirement is that all state parties (countries that have ratified the treaty) must act in the best interests of the child in all matters affecting them. This principle has been incorporated into Australian legislation, particularly the Family Law Act 1975 (Cth), which governs family law matters at the federal level. When courts make decisions about children, the paramount consideration must be what serves the child's best interests, not necessarily what parents or other adults prefer.

Basic rights under CROC

Articles $1$–$40$ of CROC outline fundamental rights that all children should enjoy. These include:

• The right to life – recognizing that children's survival must be protected
• The right to a name and identity – ensuring children are legally recognized as individuals
• The right to be raised by their family – acknowledging the importance of family connections
• The right to maintain relationships with both parents – even when parents are separated, children benefit from ongoing contact with both, where safe and appropriate

These rights reflect an understanding that children need stable, nurturing environments to develop properly and that family relationships are typically central to their wellbeing.

International adoption and monitoring

CROC is the most widely ratified human rights treaty globally, with more than $193$ countries having ratified it. Notably, only the United States and Somalia have not ratified this treaty, making it nearly universal in its acceptance.

The UN Committee on the Rights of the Child monitors how state parties implement CROC's provisions. This committee assesses countries' performance in protecting children's rights, reports to the UN General Assembly, and makes recommendations for improvement. However, the committee lacks power to hear individual complaints about violations of children's rights, which limits its enforcement capacity. Instead, it relies on moral authority and international pressure to encourage compliance.

The Gillick case and children's decision-making capacity

Gillick v West Norfolk and Wisbech Health Authority [1985] 3 All ER 402 was a landmark House of Lords decision that fundamentally changed how the law views children's capacity to make decisions about their own lives, particularly in medical contexts.

Background and facts

The case arose when the Department of Health and Social Security in England distributed information advising doctors that they could lawfully provide contraception and advice to persons under $16$ years old without parental consent. Victoria Gillick, a mother of five daughters, was concerned about this policy and requested that her local health authority promise not to provide such advice or contraception to her daughters without her consent. When the health authority refused to make this promise, Mrs. Gillick brought legal action against both the health authority and the Department of Health and Social Security.

Court proceedings

The case proceeded through multiple levels of the English court system:

• First instance: Justice Woolf held that Mrs. Gillick was not entitled to declarations prohibiting doctors from prescribing contraceptives or providing advice to her daughters without parental consent.
• Court of Appeal: This court allowed Mrs. Gillick's appeal, supporting her position.
• House of Lords: The Department of Health and Social Security, representing the health authority, appealed to the House of Lords (then the highest court in England).

The landmark decision

The House of Lords ultimately ruled against Mrs. Gillick, establishing an important legal principle about children's capacity for decision-making. The court held that a child under $16$ years is capable of giving consent in medical matters, provided they have "sufficient understanding and intelligence to enable him or her to understand fully what is proposed."

Implications for children's rights

The Gillick decision affirmed that children have the right and ability to make decisions affecting their own lives when they possess adequate understanding. This principle extends beyond medical contexts to other areas where children's views and choices should be respected.

The case represents a significant shift from viewing children as subjects of parental authority to recognizing them as individuals with developing autonomy. It acknowledges that as children mature, they should gain increasing control over decisions about their lives, even before reaching the age of majority.

Remember!