Children’s Socio-Economic Rights, Democracy and the Courts 9781472565709, 9781841137698

Citation preview

Series Editor’s Preface How should courts and others address the socio-economic rights of children? What are the implications for constitutional law, democratic theory and human rights? What does the existing evidence suggest about how children’s rights are best promoted and secured? These are only some of the questions expertly explored in this latest contribution to Human Rights Law in Perspective. As with other leading books in this Series, Dr Nolan locates the arguments advanced in conceptual and comparative context and draws extensively on the existing materials to offer a comprehensive work that will prompt further discussion and debate. The focused and much needed attention placed on the practical realisation of the socio-economic rights of children makes this a particularly welcome addition to the Series. Colin Harvey Belfast 21st July 2011

Acknowledgements All told, this book has taken over eight years to research and write. Some of those who were kind enough to meet with me, provide me with information or read parts of the book include Philip Alston, Geoff Budlender, Nicola Carr, Shaamela Cassiem, Sarah Christie, Hugh Corder, Gerard Durcan, Liam Delaney, Octavio Ferraz, Colin Harvey, Noirin Hayes, Matt Killingsworth, Jeff King, Claire McHugh, Pól O’Murchú, Christina Murray, Lia Nijzink, Brian Nolan, Carl O’Brien, Paul O’Connell, Rory O’Connell, Karrisha Pillay, Gavin Phillipson, Bruce Porter, Paula Proudlock, Walter Radloff, Michael Rebell, César Rodríguez Garavito, Carol Sanger, Martin Sigal, Paul Trachtenberg, Julia Sloth-Nielsen, Geraldine Van Bueren, Belinda Van Heerden, Jeremy Waldron and Gerry Whyte. Particular thanks go to Fiona de Londras who read much of the manuscript. All remaining errors are the author’s own. The support and academic input of colleagues at Durham Law School and the School of Law at Queen’s University Belfast is much appreciated. Thanks are due to the Law Faculty at the University of Cape Town for being so generous with their hospitality, time and information during my repeat visits. My thanks also to the Columbia University Law School and Fordham University School of Law where I spent time as a Visiting Research Fellow and Visiting Foreign Scholar, respectively, benefiting greatly from the resources and contacts made available to me there. Claire Fox provided excellent proof-reading. I am also grateful to all at Hart Publishing, especially Rachel Turner, for their assistance and understanding. Huge thanks to my family and friends who provided support throughout the whole process and, particularly, Úna, David, Kevin, Helen, Emer and JJ, without whose help the project could not have been completed. To G and P for furry companionship. And to Toma whose love makes everything complete. This book is dedicated to my grandparents and to Katie, who would have much to say to each other.

Abbreviations ACHR BNhE ComESCR ComRC CRC CRSA CRSO ECHR ECtHR IACtHR ICESCR IGO ILO MDG NGO ODC UN UNICEF

American Convention on Human Rights Bunreacht Na hÉireann/Constitution of Ireland UN Committee on Economic, Social and Cultural Rights UN Committee on the Rights of the Child UN Convention on the Rights of the Child Constitution of the Republic of South Africa child whose rights are subject to court order European Convention on Human Rights European Court of Human Rights Inter-American Court of Human Rights International Covenant on Economic, Social and Cultural Rights intergovernmental organisation International Labour Organization Millennium Development Goal non-governmental organisation other disadvantaged children United Nations United Nations Children’s Fund

Table of Cases African Commission on Human and People’s Rights SERAC and CESR v Nigeria, Communication No. 155/96 (ACHPR) (2002); 10 IHRR 282 (2003) ............................................................................ 39

Argentina Campodónico de Beviacqua Ana Carina v Ministerio de Salud y Banco de Drogas Neoplácias, Supreme Court of Argentina, 24 October 2000 ...................................................................................... 41, 236 Menores Comunidad Paynemil s/acción de amparo, Expte 311-CA-1997, Neuquen Civil Court of Appeals, Division II, 19 May 1997 ............................. 76 Defensoria de Menores No 3 v Poder Ejecutivo Municipal, s/acción de amparo, Expte 46-99, Neuquen Supreme Tribunal of Justice, 2 March 1999 .................................................................................. 76

Brazil Asociación Civil por la Igualdad y la Justicia v GCBA, Expte No 23360/0 19 March 1998........................................................... 195–96

Canada Doucet-Boudreau v Nova Scotia (Minister of Education) [2003] 3 SCR 3................................................................................... 160, 205–6 Irwin Toy Ltd v Québec (Attorney General) [1989] 1 SCR 927.......................... 158 Sauvé v Canada [2002] 3 SCR 519 ...................................................................... 19 Vriend v Alberta [1998] 1 SCR 493 ................................................................... 158

Colombia Constitutional Review Judgment, C–251/02 ................................................ 137–38 Constitutional Review Judgment, C–970/04 ...................................................... 138 Unification Judgment, SU–225/98 .............................................................. 132, 237 Tutela Judgment, T–025/04 .................................................................. 60, 206, 208 Tutela Judgment, T–983A/04 ............................................................................. 137 Tutela Judgment, T–760/08 .......................................................................... 238–39

European Court of Human Rights Evans v United Kingdom, App No 6339/05, 10 April 2007 ................................... 3 Vo v France, App No 53924/00, 8 July 2004 ......................................................... 3

Germany 1 BvR 2014/95, 3 April 2001 ............................................................................... 68 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09, 9 February 2010 ....................................... 251

xvi Table of Cases India His Holiness Kesavananda Bharati Sripadagalavaru v State of Kerala 1973 (4) SCC 225........................................................................................... 137 IR.Coelho (Dead) by LRs v State of Tamil Nadu 2007 (2) SCC 1 ...................... 137 Mehta v State of Tamil Nadu 1996 (6) SCC 756 ........................................ 200, 206 PUCL v India, Writ Petition (Civil) No 196 of 2001, Interim Order of 28 November 2001 ................................................................................... 215 Unni Krishnan, JP v Andhra Pradesh 1993 AIR 217 ...................................... 4, 104

Inter-American Court of Human Rights Case of the ‘Juvenile Reeducation Institute’ v Paraguay, Judgment of September 2, 2004 Inter-Am Ct HR (Ser C) No 112 (2004) ..... 5, 37 Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/2002, 28 August 2002, Inter-Am Ct HR (Ser A) No 17 (2002)......... 3, 13 Massacres of Ituango v Colombia, Judgment of 1 July 2006, Inter-Am Ct HR (Ser C) 148 (2006) ................................................................. 39 Villagrán Morales et al. v Guatemala, (the ‘Street Children’ Case), Judgment of 19 November 1999, Inter-Am Ct HR (Ser C) No 63 (1999) ........... 3 Yakye Axa Indigenous Community v Paraguay, Judgment of 17 June 2005 Inter-Am Ct HR (Ser C) No 125 (2005) ..................................... 37

Ireland Adoption (No 2) Bill 1987 [1989] IR 656 .......................................................... 112 Article 26 and the Health (Amendment) (No 2) Bill 2004 [2005] IESC 7, In re ............................................................................................. 168–69 Attorney General v Hamilton (No 1) [1993] ILRM 81 ...................... 146, 150, 178 Boland v An Taoiseach [1974] IR 338 ........................................................ 146, 151 Buckley (Sinn Feín v Attorney General) [1950] IR 67......................................... 146 Byrne v Ireland [1972] IR 241............................................................................ 152 M (TM) v D (M) [1999] IESC 8 ........................................................................... 35 Comerford v Minister for Education [1997] 2 ILRM 134 .................................. 153 Company of Ireland Ltd v Fitzpatrick (No 2) [1961] IR 345.............................. 152 Crotty v An Taoiseach [1987] IR 713; [1987] ILRM 400..... 141, 150–52, 174, 178 Crowley v Ireland [1980] IR 102 ....................................................................... 142 DB [1998] IEHC 123 ................................................................................. 112, 179 DD v Eastern Health Board, unreported 3 May 1995 .................................. 153–54 DG v Eastern Health Board [1997] 3 IR 511 ..................................................... 152 FN v Minister for Education [1995] 1 IR 409 .................................... 112, 154, 167 G v An Bord Uchtála [1980] IR 32..................................................................... 153 Kavanagh v Governor of Mountjoy Prison [2002] 3 IR 97 ................................ 141 Lynham v Butler (No 2) [1933] IR 74 ................................................................ 147 McGimpsey v Ireland [1988] IR 567 .................................................................. 152 McKenna v An Taoiseach (No 2) [1995] 2 IR 10 ....................................... 151, 174 Melling v Ó Mathghamhna [1962] IR 1............................................................. 147 MF v Superintendent Ballymun Garda Station [1991] 1 IR 189 ......................... 112 MhicMhathúna v Attorney General [1995] 1 IR 484 ......................................... 165 Norris v Attorney General [1984] IR 3 .............................................................. 141 North Western Health Board v W (H) [2001] IESC 70 ...................................... 167

Table of Cases xvii O’Brien v Wicklow UDC, unreported 10 June 1994 .......................................... 165 O’Donoghue v Minister for Health [1996] 2 IR 20 ...................................... 35, 243 Ó Láigléis, Re [1960] IR 93 ............................................................................... 141 O’Reilly v Limerick Corporation [1989] ILRM 181............................. 163–67, 169 Ryan v Attorney General [1965] IESC 1 .................................................... 153, 243 Sinnott v Minister for Education [2001] IESC 39 ............................................................ 6, 35, 61, 161, 165–66, 173, 177 State (C) v Frawley [1976] IR 365...................................................................... 165 State (Quinn) v Ryan [1965] IR 70 .................................................................... 152 Sumers Jennings v Furlong [1966] IR 183 .......................................................... 141 TD v Minister for Education [2000] IEHC 21 ........................................... 112, 173 TD v Minister for Education [2001] IESC 86 ........................... 6, 112–13, 116–17, 135, 151–55, 162, 164, 166–68, 173–79, 183–85, 205, 239–40 Woods, Application of [1970] IR 154 ................................................................ 141

South Africa August v Electoral Commission 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC) ....................................................................................172 B v Minister of Correctional Services 1997 (4) SA 441 (C); (6) BCLR 789 (C) ........................................................................................... 199 Bel Porto School Governing Body v Premier of the Western Cape Province 2002 (3) SA 265 (CC); 2002 (9) BCLR 891 (CC).................... 149 Centre for Child Law v MEC for Education, Gauteng 2008 (1) SA 223 (T) ................................................... 206, 235, 254–55 Centre for Child Law v Minister of Home Affairs 2005 (6) SA 50 (T) .................................................................................................. 235 Chairperson of the Constitutional Assembly, Ex parte; In re Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC); 1996 10 BCLR 1253 (CC) ........................................................ 141, 143–45, 171 City of Johannesburg v Mazibuko [2009] ZASCA 20 ........................................ 199 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) ....................................................................... 144, 172 DeLange v Smuts NO 1998 (3) SA 785; 1998 (7) BCLR 779 ............................ 144 Du Plessis v De Klerk 1996 (3) SA 850 (CC); (1996) (5) BCLR 658 (CC) .......... 170 Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) ................................................................................... 144 First Certification Judgment see Chairperson of the Constitutional Assembly, Ex parte; In re Certification of the Constitution of the Republic of South Africa 1996 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) ............................................................................... 149 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC); 2000 11 BCLR 1169 (CC) .................. 35, 41, 107–8, 141, 144, 153, 170–71, 227–28, 236

xviii Table of Cases Khosa v Minister of Social Development 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) ....................................................................... 205, 227 Mazibuko v City of Johannesburg [2009] ZACC 28 ............................ 35, 199, 234 Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC); 2002 (10) BCLR 1033 (CC) ............................................21, 135, 144–45, 153–55, 161–62, 171–72, 175, 177, 179, 183–85, 194, 213–15, 227–28, 236, 241–42 Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC) ........................................ 144 Mohamed v President of the Republic of South Africa 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC) ......................................................... 149 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC); 2000) (1) BCLR 39 (CC).......................... 144 Nokotyana v Ekurhulni Metro [2009] ZACC 33 ............................................... 200 Occupiers of 51 Olivia Road Berea Township and 197 Main Street Johannesburg v City of Johannesburg and Others 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (19 February 2008) ................................................ 209 Pharmaceutical Manufacturers Association of South Africa v President of South Africa, 2000 (2) SA 674; 2000 (3) BCLR 241; 2011 (7) BCLR 651 (CC) ............................................................................... 144 Rail Commuter Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC); 2003 (3) BCLR 288 (CC) .................................................... 203 Residents of Joe Slovo Community v Thubelisha Homes, [2009] ZACC 16 .................................................................................... 200, 209 S v Dodo (2001) (3) SA 382 (CC); 2001 (5) BCLR 423 (CC) ............................. 144 S v Lawrence (1997) (4) SA 1176 (CC); 2001 (5) BCLR 423 (CC)..................... 170 S v Makwanyane 1995 3 SA 391 (CC); 1995 6 BCLR 665 (CC).......................... 34 Soobramoney v Minister of Health (Kwazulu-Natal) 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) ........................................ 144, 199 South African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883 (CC); 2001 (1) BCLR 77 (CC) ........................................ 144–45, 150 Treatment Action Campaign and others v Minister of Health and others (2002) (4) BCLR 356 (T) ..................................................................... 155 Western Cape Legislature v President of Republic of South Africa 1995 (4) SA 877(CC); 1995 (10) BCLR 1289.......................................................... 144

United Kingdom R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15........................................................ 65

United States of America Brown v Board of Education of Topeka (Brown I), 347 US 483 (1954) ....205–6, 230 Brown v Board of Education of Topeka (Brown II), 349 US 294 (1955) ............................................................................. 205–6, 230 Brown v Maryland, 12 Wheat 419 (1827) ......................................................... 121 Campaign for Fiscal Equity Inc v State of New York, 100 NY2d 893 (2003); 29 AD3d 175 (2006) ................................................. 205

Table of Cases xix Carolene Products v United States, 304 US 144 (1938) .............. 119, 123, 125, 128 Graham v Florida, 560 US ____ (2010) (Slip Opinion)......................................... 36 Hedgepeth v Washington Metropolitan Area Transit Authority, 386 F.3d 1148 (2004) .................................................................................... 127 Roper v Simmons, 543 US 551 (2005) ................................................................. 36 San Antonio Independent School District v Demetrio P Rodriguez, 411 US 1 (1973) ............................................................................................. 127

Table of Legislation National Legislation Argentina Comprehensive Protection of the Rights of Children (Act No 26.061 of 2005) ............................................................................ 76–77 Constitution sec 42 ............................................................................................................... 42 sec 75 ............................................................................................................. 137 (22) ................................................................................................... 4, 33, 196 (23) ................................................................................................................. 4 sec 99 ............................................................................................................. 137 sec 116 ........................................................................................................... 137

Azerbaijan Constitution art 17(II) ........................................................................................................... 63

Brazil Constitution Title VIII ch 11 s II ........................................................................................... 32 art 196........................................................................................................ 31–32 art 227............................................................................................................ 239

Bulgaria Constitution art 47(1) ........................................................................................................... 63

Canada Charter on Human Rights and Freedoms (Quebec) ............................................ 158 Charter on Rights and Freedoms ........................................................................ 158 s 23................................................................................................................. 160 s 33................................................................................................................. 210

Chad Constitution art 38................................................................................................................ 63

Colombia Constitution art 11.............................................................................................................. 132 art 44.......................................................................................... 14, 22, 132, 237 art 45................................................................................................................ 14

xxii Table of Legislation art 48.............................................................................................................. 132 art 49.............................................................................................................. 132 art 50................................................................................................................ 14 art 93................................................................................................................ 33 art 113............................................................................................................ 137

Democratic Republic of Congo Constitution art 40................................................................................................................ 63

Ecuador Constitution art 39................................................................................................................ 48 art 45................................................................................................................ 48

Germany Constitution ....................................................................................................... 251 Constitution art 3.................................................................................................................. 68 art 6(1) ............................................................................................................. 68

Ghana Constitution art 28................................................................................................................ 63

India Constitution ................................................................................................... 7, 137 art 21.......................................................................................................... 4, 215 art 21A ....................................................................................................... 7, 104 art 24.................................................................................................................. 7 art 45.................................................................................................................. 7 art 51A(k)........................................................................................................... 7 Constitution Amendment Act (86th) 2002 ......................................................... 104

Ireland Age of Majority Act 1985 ...................................................................................... 6 Child Care Act 1991 .............................................................................................. 6 Children Act 1997.................................................................................................. 6 Constitution ..................................................... 6, 135, 140–55, 162, 175, 178, 180 art 6................................................................................................................ 146 art 6.1............................................................................................................. 146 art 6.2............................................................................................................. 147 art 15.2........................................................................................................... 146 art 15.4........................................................................................................... 151 art 26.............................................................................................................. 151 art 28.2........................................................................................................... 146 art 28.4.1° ...................................................................................................... 147 art 29.............................................................................................................. 141

Table of Legislation xxiii art 29.6........................................................................................................... 141 art 34.1........................................................................................................... 146 art 34.3.1° ...................................................................................................... 151 art 34.3.2° ...................................................................................................... 151 art 34.4.3° ...................................................................................................... 151 art 34.4.4° ...................................................................................................... 151 art 34.5.1° ...................................................................................................... 151 art 35.2........................................................................................................... 147 art 35.3........................................................................................................... 148 art 35.4........................................................................................................... 148 art 37.1........................................................................................................... 146 art 40...................................................................................................... 167, 243 art 40.3........................................................................................... 141, 152, 163 art 40.3.1° .............................................................................. 142, 153, 158, 168 art 40.3.2° ...................................................................................................... 168 art 40.3.3° .......................................................................................................... 4 art 41.............................................................................................................. 142 art 42........................................................................................ 63, 142, 167, 243 art 42.1............................................................................................................. 21 art 42.4........................................................................................... 142, 159, 243 art 42.5................................................................................... 112, 142, 154, 159 art 44.2.4° ...................................................................................................... 142 art 45.............................................................................................................. 141 Housing Act 1966 .............................................................................................. 163

South Africa Child Care Act 1983 s 1..................................................................................................................... 51 Constitution ..................................................... 33, 135, 140–53, 162, 180, 241–42 sec 1 ............................................................................................................... 148 sec 2 ............................................................................................................... 148 sec 7(2) ........................................................................................................... 158 sec 8 ................................................................................................................. 21 (1) ............................................................................................................... 148 sec 9 ............................................................................................................... 153 sec 10 ............................................................................................................. 153 sec 11 ............................................................................................................. 153 sec 12 ............................................................................................................. 153 sec 26 ..................................................................................... 141, 153, 158, 235 (2) ............................................................................................................... 158 sec 27 ............................................................................. 141, 153, 158, 199, 235 (1)(b)........................................................................................................... 199 (2) ............................................................................................................... 158 sec 28 ............................................................................................. 142, 153, 236 (1) ............................................................................................................... 236 (c) ........................................................107–8, 153, 205, 206, 227, 235, 239 (2) ............................................................................................................... 107 sec 29 ..................................................................................................... 141, 158

xxiv Table of Legislation sec 35(2)(e) ..................................................................................................... 199 sec 38 ..................................................................................................... 148, 171 sec 39 ............................................................................................................... 35 (1) ................................................................................................................. 34 sec 40(2) ......................................................................................................... 148 sec 41(e) ......................................................................................................... 144 (f) ................................................................................................................ 144 (g) ............................................................................................................... 144 sec 43 ............................................................................................................. 143 sec 79(4)(b)..................................................................................................... 150 sec 80 ............................................................................................................. 150 sec 85 ............................................................................................................. 143 sec 86 ............................................................................................................. 145 sec 91(3) ......................................................................................................... 145 sec 92(2) ......................................................................................................... 145 sec 121(2)(b)................................................................................................... 150 sec 122 ........................................................................................................... 150 sec 125 ........................................................................................................... 143 sec 165 ........................................................................................................... 143 (1) ............................................................................................................... 148 (2) ............................................................................................................... 145 sec 167(3) ....................................................................................................... 148 (4) ............................................................................................................... 148 (d) ........................................................................................................... 150 (e) ............................................................................................................ 150 (5) ............................................................................................................... 149 (7) ............................................................................................................... 148 sec 172(1)(a) ............................................................................. 148–50, 172, 179 (b) ................................................................................................... 149, 152 (2) ............................................................................................................... 149 (a)...................................................................................................... 148–49 (c) ............................................................................................................ 144 sec 174(6) ....................................................................................................... 145 sec 195(1) ....................................................................................................... 153 (2) ............................................................................................................... 153 sec 231(4) ......................................................................................................... 34 sec 232 ............................................................................................................. 34 sec 233 ............................................................................................................. 34 Correctional Services Amendment Act 1994 (Act 17)........................................... 51 Interim Constitution 1993.................................................................................... 33 sec 35(1) ........................................................................................................... 34

United Kingdom Human Rights Act 1998 ............................................................................ 115, 210

United States of America Constitution (Federal) ...................................................... 96, 120–21, 123–24, 145 8th Amendment ................................................................................................ 36

Table of Legislation xxv 14th Amendment ............................................................................................ 121 art IV .............................................................................................................. 125 art VI cl 2 ......................................................................................................... 22 Constitution (New Jersey) art VIII s IV para 1 ......................................................................................... 108

International Legislation African Charter on Human and Peoples’ Rights 1981 .......................................... 39 African Charter on the Rights and Welfare of the Child 1990 ................................ 4 art 2.................................................................................................................... 4 American Convention on Human Rights 1969 art 4.............................................................................................................. 4, 37 (1) ................................................................................................................... 3 art 19............................................................................................................ 5, 37 art 26................................................................................................................ 36 San Salvador Protocol....................................................................................... 37 art 13 ............................................................................................................ 37 art 19(c) ........................................................................................................ 37 EU Charter of Fundamental Rights ........................................................................ 3 art 24.................................................................................................................. 4 European Convention on Human Rights 1950....................................................... 5 art 2.................................................................................................................... 3 art 9.................................................................................................................. 65 Hague Convention on the Civil Aspects of International Child Abduction 1980 ................................................................. 35 International Convention on the Elimination of All Forms of Discrimination against Women 1979 ........................................................ 32, 141 International Convention on the Elimination of All Forms of Racial Discrimination 1965 ........................................................................ 141 International Convention on the Rights of Migrant Workers and their Family Members 1990 ....................................................................... 32 International Convention on the Rights of Persons with Disabilities ........ 18–19, 32 art 3(h) ............................................................................................................. 19 art 4.................................................................................................................. 19 art 7.................................................................................................................. 19 art 24................................................................................................................ 19 art 25................................................................................................................ 19 International Covenant on Civil and Political Rights 1966........... 60, 105, 141, 222 International Covenant on Economic, Social and Cultural Rights 1966 ...................................... 23, 33, 34–35, 60, 105, 141, 196, 246–51 art 2(1) ............................................................................................. 236, 247–50 art 4................................................................................................................ 250 art 10(3) ........................................................................................................... 33 art 13................................................................................................................ 33 art 22(a) ........................................................................................................... 33 Optional Protocol ............................................................................................. 24

xxvi Table of Legislation UN Convention on the Rights of the Child 1989 ...................... 2–4, 19, 33, 34–35, 37, 48, 71, 75, 76, 84, 106, 141, 196, 222, 228, 236, 246 Preamble..................................................................................................... 2, 105 art 1................................................................................................................ 3–4 art 3(1) ..................................................................................................... 251–53 art 4................................................................................................................ 247 art 5.................................................................................................................. 77 art 12........................................................................................ 13, 35, 77, 79, 81 (2) ............................................................................................................... 226 art 13................................................................................................................ 77 art 14................................................................................................................ 77 art 15................................................................................................................ 77 art 18................................................................................................................ 63 art 24........................................................................................................ 31, 247 art 26.............................................................................................................. 108 art 28.............................................................................................................. 247 art 32(2) .......................................................................................................... 81 UN Declaration on the Rights of Indigenous Peoples art 11................................................................................................................ 24 art 31................................................................................................................ 24 Universal Declaration of Human Rights ............................................................... 32 Vienna Convention on the Law of Treaties 1969 art 18................................................................................................................ 34 art 31(2) ............................................................................................................. 3

Introduction

N

EVER BEFORE HAS there been such a level of acceptance that children are socio-economic rights-bearers. The UN Convention on the Rights of the Child (CRC) provides children with a wide variety of socio-economic rights and there is a growing recognition that children are also accorded such rights under other international and regional human rights law instruments, as well as domestically. However, the high levels of deprivation experienced by children worldwide demonstrate that these rights have often failed to be effectively vindicated by law- and policy-makers at a national level. While the failure to give effect to children’s rights may occasionally be attributed to policy choices deliberately aimed at disadvantaging children (or specific groups of children), it is more frequently the product of legislative or executive indifference and inertia in relation to child socio-economic rights issues. In light of the apparent unresponsiveness of the elected branches of government, advocates are increasingly focussing their efforts to secure the vindication of children’s socio-economic rights on the judiciary. Children are disproportionately represented amongst the poor1 whether such poverty is defined in absolute, relative or other terms.2 Furthermore, the increase in inequality between rich and poor in many countries over the past two decades has been accompanied by a rise in levels of child poverty.3 It is well established that living in poverty does not simply impact on the child’s experience during childhood but frequently serves to curtail the opportunities or life chances available to her as an adult.4 Indeed, in

1

UNICEF, Poverty Reduction Begins with Children (New York, UNICEF, 2000) 41. By ‘poverty’, I do not simply mean lack of income (as it has traditionally been defined). Rather, I regard poverty as a multidimensional phenomenon that ‘encompasses deprivations in areas of health education, participation and security’ (S Jahan, Human Rights-Based Approach to Poverty Reduction: Analytical Linkages, Practical Work and UNDP (UNDP, 2002). For a discussion of the challenges surrounding the definition of child poverty, as well as of the various methodologies that have been/can be employed to operationalise a definition of child poverty, see G Redmond, ‘Child Poverty and Child Rights: Edging Towards a Definition’ (2008) 14(1) Journal of Children and Poverty 63. 3 See, eg with regard to income poverty in the context of developed countries, OECD, Growing Unequal: Income Distribution and Poverty in OECD Countries (Paris, OECD Publishing, 2008), available at http://masetto.sourceoecd.org/vl=12314920/cl=35/nw=1/rpsv/ ij/oecdthemes/99980045/v2008n10/s1/p1l. 4 According to the Innocenti Centre, evidence from many countries persistently demonstrates that children who grow up in poverty are more likely to be in poor health, to have learning and behavioural difficulties, to underachieve at school, to become pregnant at too early an age, to have lower skills and aspirations, to be low paid, unemployed and welfare dependent (Innocenti Research Centre, Child Poverty in Perspective: An Overview of Child Well-being in Rich Countries—A Comprehensive Assessment of the Lives and Well-being of Children and Adolescents in the Economically Advanced Nations (Florence, UNICEF, 2007) 5). 2

xxviii Introduction addition to the moral case for eradicating child poverty, which is founded on the immense human cost of allowing children to grow up suffering physical and psychological deprivations and unable to participate fully in society, society has a strong interest in eradicating child poverty.5 This is due to the societal costs (financial or otherwise) that result from it.6 Global concern with child poverty is reflected in the way in which efforts to address child disadvantage play a central role in relation to general anti-poverty strategies and efforts to advance human development. This is demonstrated by the fact that one Millennium Development Goal (MDG) is explicitly childfocussed,7 and that every single MDG is connected to the well-being of children.8 However, the fact that the child-specific Millennium Development Goal ‘is commonly regarded as the furthest [MDG] from being achieved’ can be interpreted as evidence of the relatively low priority accorded to child poverty issues in practice.9 Children’s socio-economic rights have been described as a concrete set of responses to specific facets of child poverty.10 However, as will be argued later in this work, any suggestion that child poverty can be remedied by the law or judicial activity alone would be premised on a simplistic understanding of the causes of poverty as well as on an (almost certainly) exaggerated view of the ability of the judicial enforcement of socio-economic rights to effect wide-ranging social change.11 Nor is poverty simply a violation of socio-economic rights. UNICEF has emphasised that reducing child poverty does not entail simply the fulfilment of children’s rights to the goods and services necessary for their survival, normal growth and development; it ‘also means improving the opportunities for disadvantaged children to participate in society’.12 More broadly, there is no doubt that child poverty will not be eliminated simply by legal reform: institutional reform at both the 5 See, eg D Hirsh, Estimating the Costs of Child Poverty (York, Joseph Rowntree Foundation, 2008). 6 Ibid. 7 See Millenium Development Goal 4 (reducing child mortality). 8 UNICEF, The State of the World’s Children 2006: Invisible and Excluded (New York, UNICEF, 2006) 5. That is not to say, however, that the realisation of the MDGs, based as they are on national averages, will serve to address the poverty experienced by all children. See ibid 3. 9 UNICEF, The State of the World’s Children 2005 (New York, UNICEF, 2005) 8. For more, see Chapter 2. 10 G Van Bueren, ‘Combating Child Poverty: Human Rights Approaches’ (1999) 21(33) Human Rights Quarterly 680, 681. 11 There is considerable debate surrounding the extent to which judicial enforcement of socio-economic rights will impact upon access to, and distribution of, socio-economic rightsrelated goods and services (and hence contribute to social change). For an excellent collection of analyses of this issue based on a number of different national experiences, see V Gauri and D Brinks, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge, Cambridge University Press, 2008). For more on this point, see Chapters 5 and 6. 12 UNICEF, above n 9, 15.

Introduction xxix national and supranational levels is equally, if not more, essential.13 There is also a need for a general ‘change in mentality’ towards conceptualising child poverty as a matter of human rights, not simply a question of charity. Judicial enforcement of children’s socio-economic rights cannot serve as a panacea for the multiple, complex factors that cause and perpetuate child poverty.14 However, as this book argues, there is ample evidence that it can operate so as to at least mitigate or alleviate some of them, thereby proving itself a useful tool in combating socio-economic disadvantage experienced by children. The 2008 credit crisis and the resultant global recession is possibly the single most serious threat posed to the realisation of children’s socio-economic rights since the adoption of the CRC and the establishment of the children’s rights regime proper. The Independent Expert on Human Rights and Extreme Poverty has observed that ‘children are being hit hardest by a crisis that they did not create’ and the projected long-term impact of the crisis on them is particularly concerning.15 Governments and international financial institutions have asserted that widespread cuts to socio-economic rights-related programmes and services worldwide are justifiable—indeed unavoidable—if both domestic and global economies are to recover. Corporate bail-outs have arguably come at the cost of children and other vulnerable societal groups. Just as the courts may have something to contribute as a counterhegemonic force to neo-liberal globalisation16 which poses a threat to children’s socio-economic rights,17 they have a role to play in ensuring that the global ‘economic recovery’ does not trample upon and ignore the rights of children. It is thus crucial to consider the circumstances in which the courts can legitimately and effectively enforce children’s rights. In recent years, there has been a marked increase in the number of constitutions including children’s socio-economic rights. This is consistent with 13 For more on the steps necessary to eradicate child poverty, see various contributions to J Doek et al (eds), Child Poverty: African and International Perspectives (Mortsel, Intersentia, 2009). 14 For more on the causes of child poverty, see Chapter 6. 15 Independent Expert on Human Rights and Extreme Poverty, ‘“No green shoots of recovery for the world’s poor” says UN expert on extreme poverty’, Press Release, 17 October 2009. 16 For an in-depth discussion of ‘neo-liberal globalisation’ and its impact on the enjoyment of human rights, see P O’Connell, ‘On Reconciling Irreconcilables: Neo-Liberalisation Globalisation and Human Rights’ (2007) 7 Human Rights Law Review 483. 17 For more on the courts as a counter-hegemonic or hegemonic force in the context of globalisation, see M Saffron, ‘Can Constitutional Courts be Counterhegemonic Powers vis-à-vis Neoliberalism? The Case of the Colombian Constitutional Court’ (2007) 5 Seattle Journal for Social Justice 533, 533–37. For a discussion of the contrary claim that the judicial enforcement of socio-economic rights entails the defence of conservative positions in favour of hegemonic power, thereby reinforcing the status quo of social domination, see in R Uprimny Yepes, ‘The Enforcement of Social Rights by the Colombian Constitutional Court: Cases and Debates’ in R Gargarella et al (eds), Courts and Social Transformation in New Democracies (Aldershot, Ashgate, 2006) 127, 138.

xxx Introduction the significant evidence of a growing global tendency towards the express delineation of children’s rights in national constitutions.18 This trend is undoubtedly attributable to the influence of the CRC and the growing awareness and appreciation of children’s rights at the domestic level that has followed that instrument’s entry into force. Moreover, the increased presence of child-specific socio-economic rights provisions also results from the growing tendency towards the constitutionalisation and adjudication of justiciable socio-economic rights at both the national and international levels. But why focus on these rights in particular? First, children’s civil and political rights (particularly those relating to life, exploitation and bodily integrity) were already protected under the pre-‘children’s rights regime’ by, amongst other things, tort, criminal, labour and child protection law.19 In addition, until quite recently, discussions of civil and political rights dominated academic and legal discourses on rights. As a result, the scope and implications of such rights are generally well-defined (albeit that their application to children may be less so). It is only relatively lately, however, that lawyers have turned their attention to socio-economic rights. The substantive content of such rights and the nature of the obligations they impose thus remain underdeveloped. It is, therefore, fitting to focus on recent judicial attempts to grapple with these rights and to ensure that such rights are given effect to by the state. Furthermore, as the litigation of socio-economic rights becomes ever more common, it seems likely that the courts will grow in confidence and adopt a more assertive stance in relation to their enforcement. This will have a knock-on effect on the balance of power between the courts and other branches of government in relation to issues such as policy-making and resources allocation, which are currently regarded as very much within the domain of the non-judicial organs.20 As such, it is timely and appropriate to consider the issues raised by the courts adopting a proactive approach to children’s socio-economic rights. This book centres on the circumstances in which the courts can or should give effect to the constitutional socio-economic rights of children. Having conceptualised children as socio-economic rights-bearers in Chapter 1, it outlines a role for the courts in ensuring the vindication of children’s constitutional socio-economic rights where the elected branches of government have not done so. Its main premise is that such judicial activity is justifiable where this is necessary to ensure the realisation of those rights. In doing so, it concentrates to a large extent on the judicial enforcement of the positive

18 For more, see J Tobin, ‘Increasingly Seen and Heard: The Constitutional Recognition of Children’s Rights’ (2005) 21 South African Journal on Human Rights 86. 19 There is, however, no question but that many civil and political rights for children are at least as controversial as socio-economic rights. For more, see Chapter 2. 20 For more, see Chapter 4.

Introduction xxxi obligations imposed by children’s socio-economic rights. As discussed in the first chapter, these obligations have been the subject of the greatest debate amongst academics, practitioners and society in general, due to perceptions of them as necessarily entailing state action, as well as resource allocation and expenditure. Crucially, the judicial enforcement of socio-economic rights-related positive obligations is likely to have far greater implications for status quo power relations and resource allocation than enforcement of their negative counterparts.21 This work argues that the courts can, and should, intervene to enforce children’s socio-economic rights even where the legislature or the executive may not have envisaged the likelihood, or accepted the desirability, of such judicial involvement. It is asserted that, in doing so, the courts can go so far as to set out the steps that the state must take in order to fulfil such obligations—even where this amounts to controlling the discretion of the elected branches of government with regard to making policy or law. Admittedly, it is arguable that the entire purpose of judicial review or constitutional adjudication is the control of discretion in accordance with the rule of law.22 A significant portion of the book’s analysis, however, focuses on where a court exercises control by setting out steps in the form of a mandatory order that the state must take to fulfil its constitutional obligations. Any claim that the courts can, and should, enforce children’s socioeconomic rights has to acknowledge and address the challenges posed to such an assertion by liberal democratic constitutional theory. Thus, the first part of the book is devoted to examining the positivistic legitimacy of such judicial activity within a constitutional liberal democracy. Two of the most powerful potential obstacles to the courts intervening to ensure the realisation of children’s socio-economic rights are the separation of powers doctrine and what Bickel labelled ‘the counter-majoritarian difficulty’.23 Both of these are underpinned by particular understandings of the respective roles of the elected branches of government and the courts with regard to enforcing rights; in particular, they are premised on presumptions about the appropriateness of particular mechanisms for the resolution of disagreement about rights, as well as assumptions about the capacity of rights-bearers to employ such mechanisms. In light of this, Chapter 2 of the book considers the position of children in democracy. It details their relationship with the majoritarian decision-making 21 Indeed, Sunstein has pointed out that the line between positive and negative rights, in current US law, is selected by reference to existing distributions (C Sunstein, The Partial Constitution (Cambridge, Cambridge University Press, 1993) 71. The same is true of other jurisdictions such as those considered in this work. 22 See E Palmer, ‘Resource Allocation, Welfare Rights: Mapping the Boundaries of Judicial Control in Public Administrative Law’ (2001) 20 Oxford Journal of Legal Studies 63, 70. 23 A Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, Bobbs-Merrill, 1962) 16.

xxxii Introduction processes that have traditionally been considered the most apposite mechanism for ensuring socio-economic rights within democratic societies. Focussing on the work of John Hart Ely and Jeremy Waldron on judicial review, Chapter 3 argues that children’s ‘exclusion’ from democracy, and the ineffective representation of their rights/interests by others, results in their failing to enjoy the benefits and protections allegedly accorded to participants in such processes. This weakens the ‘counter-majoritarian objection’ to the courts giving effect to children’s socio-economic rights. Many of the rights associated with citizenship, including freedom of association and expression, are accorded to children under the CRC.24 This is consistent with that instrument’s recognition that children are social or public actors. The omission (or at least the non-inclusion) of the ‘right to vote’, however, means that children are denied what is arguably the ‘keystone’ right of citizenship. In her work outlining what she terms the ‘semi-citizenship’ of children, Cohen observes, ‘the most controversial and least attended side of children’s citizenship concerns their political rights’.25 However, the existence of political rights and access to decision-making processes associated with democratic citizenship are frequently proffered as justifications for a limited judicial role. Therefore, an element of Chapters 2 and 3 is an exploration of the implications of both the child’s position in democracy and the parameters of the children’s rights regime for the position of the child as ‘democratic citizen’. This entails a consideration of how key concepts and values in democratic theory, such as ‘representation’ and ‘participation’, apply with regard to children. Ultimately, an underlying question addressed by the book is how does—or should—the limited democratic ‘citizenship’ enjoyed by children impact on the parameters of legally legitimate judicial activity aimed at securing the enforcement of their rights? Chapter 4 centres on the claim that, in seeking to give effect to children’s socio-economic rights, the court exercises control over the law and policymaking functions traditionally regarded as allocated to other branches of government, thereby violating the separation of powers doctrine. In it, I discuss the courts’ function under the separation of powers in light of their duty to ensure that children’s socio-economic rights are upheld by all branches of government. The chapter considers the implications that children’s relative powerlessness within democracy has for the judiciary’s role as guardian of rights and for the courts’ approach to the separation of powers doctrine in the context of adjudicating children’s socio-economic rights. In doing so, it contrasts the approach adopted by the South African Constitutional Court and the Irish Supreme Court to the balance to be struck between the separation 24

For more on children’s civil and political rights under the CRC, see Chapter 2. E Cohen, ‘Neither Seen Nor Heard: Children’s Citizenship in Contemporary Democracies’ (2005) 9(2) Citizenship Studies 221, 224. 25

Introduction xxxiii of powers doctrine and the principle of constitutional supremacy in the context of children’s constitutional socio-economic rights adjudication. Taken together, Chapters 2 to 4 make the case that the courts may give effect to children’s socio-economic rights even where such judicial behaviour appears prima facie to be undemocratic and results in the courts’ exercising control over the discretion of the other organs of government with regard to law or policy-making in violation of a traditional, formal conception of the separation of powers. It is, of course, not enough to consider the judicial enforcement of children’s socio-economic rights solely in terms of the compliance (or not) of such activity with tenets of liberal democratic constitutional theory. If our concern is with securing a greater level of enjoyment of socio-economic rights on the part of children, then a key question to be considered will be: ‘does such activity work?’ Thus, the second part of the book builds upon the earlier discussion of the legitimacy of the courts giving effect to children’s socio-economic rights, focussing on the related issue of the efficacy of such judicial activity in terms of its ability to bring about the desired result of the enforcement or realisation of children’s rights. Referencing litigation and court decisions from a range of different jurisdictions, including India, Argentina, Brazil and South Africa, Chapters 5 and 6 address this question. A consideration of efficacy consists of not only an examination of the direct legal, policy and other effects of particular instances of judicial enforcement of children’s socio-economic rights. It also involves a discussion of the indirect effects of this activity, where these include a subsequent change in law, administrative policy or societal attitudes that impacts upon the enforcement of children’s socio-economic rights. Chapter 5 centres on the question of the institutional capacity of the courts in the context of enforcing children’s socio-economic rights and addresses the thorny issue of the implementation of court decisions. It identifies a number of elements that increase or diminish the likelihood of success where the courts seek to give effect to children’s socio-economic rights. In turn, Chapter 6 centres on the issue of the advantages and drawbacks of employing the law and the courts (as opposed to other avenues or forms of advocacy) to advance children’s rights. Consistent with the book’s concern with the role of children as social actors and their agency, a key element of this chapter is a consideration of the role played by children in relation to socio-economic rights litigation that is ostensibly brought on their behalf, and the extent to which their views affect both the inputs and the outputs of socio-economic rights adjudication. This section of the monograph also addresses the frequently-made claim that in enforcing the socio-economic rights of those children who appear before them, the courts will inevitably negatively impact upon other children’s enjoyment of socio-economic rights. The last chapter draws together the arguments made throughout the book in order to draw final conclusions on the legitimacy and efficacy of the judicial enforcement of children’s socio-economic rights.

xxxiv Introduction The jurisprudence discussed in this book emerges from a range of both developed and developing regions.26 Challenges posed to children’s socioeconomic rights vary greatly between the different jurisdictions but all of the countries chiefly referred to have high levels of child poverty, whether relative, absolute or otherwise defined in nature.27 It is important to note that this book does not pretend to provide a blow-by-blow comparison of the judicial protection of children’s socio-economic rights in the countries primarily referred to, namely, Colombia, Argentina, Ireland, Brazil, South Africa, India and the United States. Nor does it become heavily involved in issues such as the alleged differences between common law, civil law and mixed legal systems or between those jurisdictions that have adopted a monist or dualist approach. Rather, the case law highlighted is employed to provide support for and to flesh out the book’s argumentation, which aims to be general and normative rather than jurisdiction-specific. That is not to suggest that there is no consideration of divergent elements of different constitutional frameworks and legal systems; these are addressed where they play a role in guiding the scope of judicial decision-making under discussion. The primary focus, however, is on the jurisprudence, rather than on detailed analyses of general constitutional schema. The crucial

26 According to the Human Development Index, which is employed by the United Nations in categorising countries in terms of human development, the United States ranks 4th, Ireland 5th, Argentina 46th, Brazil 73rd, Colombia 79th, South Africa 110th and India 119th (United Nations Development Programme, Human Development Report 2010 (Geneva, UNDP, 2010)). The human development index (HDI) is a summary composite index that measures a country’s average achievements in three basic aspects of human development: health, knowledge and a decent standard of living. Source: UNDP, ‘What is the Human Development Index (HDI)?’, http://hdr.undp.org/en/statistics/faq/question,68,en.html. 27 The Irish Combat Poverty Agency reports that in 2008, according to the EU Survey on Income and Living Conditions (EU-SILC), 6.3% of all children under 17 in Ireland were living in ‘consistent poverty’ (living in households with an income less than 60% of the median and without access to two or more basic goods) and 18% were ‘at risk of poverty’ (living in families whose income was below 60% of median income): see www.combatpoverty.ie/ povertyinireland/childpoverty.htm. The US National Center for Child Poverty states that, as of 2009, nearly 15 million children in the United States (21% of all children) live in families with incomes below the federal poverty level (US$22,050 a year for a family of four): see www.nccp.org/topics/childpoverty.html. According to the NGO Plan, in 2005, India had the largest number of poor children of any country, with an estimated 80% of its 400 million children severely deprived (a condition that was not defined in the report), and 60% ‘absolutely poor’ (a condition characterised by severe deprivation of basic human needs, including food, safe drinking water, sanitation facilities, health, shelter, education and information, depending not only on income but also on access to services) (Plan, Growing Up in Asia: Plan’s Strategic Framework for Fighting Child Poverty in Asia 2005–2015 (Bangkok, Plan, 2005) 7). According to figures calculated by the Economic Commission for Latin America and the Caribbean on the basis of special tabulations of data from national household surveys, 15.6% of children in Colombia in 2010 lived in extreme poverty, with total child poverty standing at 38.5%; 10% of Argentinean children lived in extreme poverty, with a total child poverty level of 28.7%; 14.6% of Brazilian children lived in extreme poverty, while total child poverty stood at 38.3% (cited in E Espíndola and M Nieves Rico, ‘A Priority Challenge’ (2010) 10 Challenges 5, 7). Extreme poverty was defined as ‘severe deprivations’ (ibid 5).

Introduction xxxv unifying elements of all the constitutional regimes discussed in this work is that, first, they are all democracies whose constitutional frameworks afford protection to the socio-economic rights of the child, albeit to a greater or lesser extent.28 Secondly, the courts in those jurisdictions have played an active role (whether positive or negative) in relation to the enforcement of the constitutional socio-economic rights of the child. A final theme of this work is a consideration of the way in which the courts have approached children’s socio-economic rights cases as ‘children’s rights’ cases. While some adjudicative bodies have displayed a strong consciousness of the position of children as rights-holders in society, others appear to attach only minimal weight to the fact that the rights subject to their decision-making are those of a group with its own socially and biologically determined disadvantages. Thus, key questions underlying the discussion in this monograph include: what perceptions of children as rights-holders and members of democratic society underpin the various judicial approaches considered? How, if at all, do the courts advance particular conceptions of children and children’s socio-economic rights through their decision-making? The book does not argue that the judicial enforcement of children’s socio-economic rights is an unqualified ‘good’. Rather, it is careful to focus on both the positive aspects and potentially seriously negative implications of such activity in terms of the realisation of children’s rights. In doing so, it provides pragmatic, convincing answers to the questions of whether the courts can and should intervene to enforce children’s socio-economic rights.

28 While the United States does not afford protection to children’s socio-economic rights in the Federal Constitution, this work will consider instances in which state courts have adjudicated education provisions set out in state constitutions.

1 Children and Socio-economic Rights INTRODUCTION

T

HIS CHAPTER SETS the scene for the investigation carried out in the book, explaining who and what I am talking about. It centres on the question of why it is necessary to look at children and their socio-economic rights. It also considers when and how the courts may be called upon to enforce such rights. Having opened with a discussion of definitions employed throughout the book, I proceed to address the key issues that arise in relation to the conceptualisation of children as socio-economic rights-bearers. This entails a consideration of the implications of various constructions of children and childhood for societal, political and legal perceptions and treatment of children. Next, I outline the particular position occupied by children with regard to socio-economic rights violations and consider whether children qualify as a ‘special case’ vis-à-vis such rights when compared to other social groups. This is followed by a discussion of the definition and the alleged characteristics of socio-economic rights with a view to rebutting objections to such rights being subject to judicial enforcement. I also highlight the role, and justify references to, international law in the book’s argumentation. Finally, the chapter introduces the book’s discussion of the role of the courts by outlining the situations in which the courts might intervene and what action they might take. OF DEFINITIONS AND OTHER THINGS

The first, necessary, step is to define the subjects of this work: that is, children. The meanings of ‘child’ and ‘childhood’ vary greatly between different societies, in the same society over time, or even within one society at the same time.1 In contemporary societies, a child may qualify as an adult 1 For more on the evolution or history of the notion of ‘childhood’ in Western society, see P Ariès, Centuries of Childhood (London, Cape, 1962). While this work is celebrated and often cited, it has also been the subject of much justified criticism. See, eg L Pollock, Forgotten Children: Parent–Child Relations from 1500 to 1900 (Cambridge, Cambridge University Press, 1983). On the approach of historians to childhood and children generally,

2 Children and Socio-economic Rights for religious, cultural or certain civil law purposes while still being a child for others: a Catholic child in Poland who has undergone confirmation is regarded as an adult within a religious context, while remaining a child for civil law purposes. Similarly, an African boy in Southern Africa who has undergone initiation ceremonies may be regarded as an adult by the community in which he lives while lacking the independent legal capacity generally associated with such status. In recent years, there has been a move away from the employment of a purely developmental model of childhood, most famously associated with Piaget, towards a model that views definitions of children, as well as the varied childhoods which children experience, as predominantly social constructs shaped by a range of social, historical and cultural factors.2 This move from a developmental to a socio-biological framework of childhood has been particularly notable amongst commentators working in the field of the sociology of the child. A retreat from a view of child development as the unilinear, natural, inevitable and universal progression of children from ‘simple’ childhood to ‘complex’ adulthood potentially has major implications for the approach of the law to children and their rights. This is particularly so when it comes to recognising and giving effect to children’s capacity for decision-making in different contexts. Certainly, it poses complications for legal efforts to create distinct categories of ‘children’ and ‘non-children’. As Van Bueren notes, there are two points of contention in the definition of a ‘child’: the beginning and the end of childhood.3 The first challenge is to address the question of when childhood begins. When defining the word ‘child’ for the purposes of the UN Convention on the Rights of the Child (CRC), the negotiating states parties differed sharply on the starting point of childhood.4 As a result of this dissensus, there is no mention of a ‘minimum’ age in the CRC. The sole brief reference to the position of the unborn child in the CRC occurs in the Preamble, which quotes a section see L Jordanova, ‘Children in History: Concepts of Nature and Society’ in G Scarre (ed), Children, Parents and Politics (Cambridge, Cambridge University Press, 1989) 3. 2 B Franklin, ‘Children’s Rights and Media Wrongs: Changing Representations of Children and the Developing Rights Agenda’ in B Franklin (ed), The New Handbook of Children’s Rights: Comparative Policy and Practice (London, Routledge, 2002) 15, 17. For more on the social construction of ‘childhood’ and ‘children’ in different societies, see A James, C Jenks and A Prout, Theorising Childhood (Oxford, Polity Press, 1998); A James and A Prout, Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood (London, Falmer Press, 1997). For a comparison of contemporary concepts of childhood from various social and academic disciplines, see J Fionda (ed), Legal Concepts of Childhood (Oxford, Hart Publishing, 2001). 3 G Van Bueren, The International Law on the Rights of the Child (London, Martinus Nijhoff, 1998) 33. For a discussion of the definition of the child under international law, see ibid 33–38. 4 For an account of the negotiating process on the definition of ‘child’ in the CRC, see S Detrick, The United Nations on the Convention on the Rights of the Child: A Guide to the ‘Travaux Préparatoires’ (The Hague/London, Martinus Nijhoff Publishers, 1992) 115–19.

Of Definitions and Other Things 3 of the non-binding 1959 Declaration of the Rights of the Child recognising that the child ‘by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’.5 This ‘silence’ of the CRC reflects the absence of a universally agreed-upon age when childhood begins. Nor does regional human rights law appear to provide a clear, consistent definition of when the protection of childhood begins, albeit that the relevant treaty and case law on this issue indicates a predominant view that ‘childhood’ is protected from birth, rather than beforehand. Alone amongst international and regional human rights law instruments, Article 4(1) of the American Convention on Human Rights (ACHR, 1969), provides explicitly that the right to life ‘shall be protected by and, in general, from the moment of conception’. There has not, however, been Inter-American case law involving the rights of the unborn and neither of the Inter-American Court of Human Rights’ two key statements on the definition of the child has made reference to the unborn, referring instead to the language of Article 1 CRC.6 The European Court of Human Rights has held that, in the absence of a European consensus on the scientific and legal definition of the beginning of life, the question of when the right to life under Article 2 of the European Convention on Human Rights (ECHR) begins comes within states’ margin of appreciation.7 In the circumstances examined to date by the ECHR institutions (that is, in the various laws on abortion that have been raised in complaints before them), the unborn child has not been regarded as a ‘person’ directly protected by Article 2. The issue of the right to life of the unborn has not been addressed by the European Committee of Social Rights, which does not monitor an instrument that explicitly enshrines the right to life. However, given that body’s extensive reliance on the jurisprudence of the European Court of Human Rights (ECtHR) in areas of overlap between the instruments,8 should a question of the rights of the unborn come before it, it would not be unreasonable to assume that it would adopt a similar approach to that of the ECtHR. The EU Charter of Fundamental Rights does not define ‘child’ but the child-specific provision of that instrument,

5 While not imposing legally binding obligations in the way that other Convention provisions do, the Preamble is part of the context of that instrument for the purposes of interpretation (Vienna Convention on the Law of Treaties 1969, Art 31(2)). 6 Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/2002, 28 August 2002, Inter-Am Ct HR (Ser A) No 17 (2002) para 42; Villagrán Morales et al v Guatemala (the ‘Street Children’ Case), Judgment of 19 November 1999, Inter-Am Ct HR (Ser C) No 63 (1999) para 188. 7 Vo v France, Application No 53924/00, Judgment of 8 July 2004, para 82. Confirmed in Evans v United Kingdom, Application No 6339/05, Judgment of 10 April 2007, para 54. 8 For further discussion of this, see H Cullen, ‘The Collective Complaints System of the European Social Charter: Interpretative Methods of the European Committee of Social Rights’ (2009) 9 Human Rights Law Review 61, 72–74.

4 Children and Socio-economic Rights Article 24, is based on the CRC.9 Thus, it can be assumed to employ the CRC understanding of ‘child’. In turn, the African Charter on the Rights and Welfare of the Child, the key African children’s rights instrument, follows the CRC’s lead in failing to specify the beginning of childhood.10 In light of the preponderant approach of international and regional human rights law, as well as the wide diversity of approaches at the domestic level, this work takes childhood to begin at the time of birth. That is not to ignore the fact that in some jurisdictions, the constitutional framework accords the right to life to unborn children.11 The right to life may be, and in some jurisdictions has been, interpreted to have clear socio-economic aspects and implications, albeit not in the context of the unborn.12 However, the arguments in this book are restricted in their application to born children so as to avoid the complications inherent in dealing with the rights of the unborn, including potential conflicts between the rights of the mother and the judicial enforcement of the socio-economic rights of the unborn child. I will now turn to the ‘end’ of childhood. In international law terms, Article 1 of the CRC provides two tests for childhood. First, it states that a child is any person under the age of 18. Secondly, it provides that under national law applying to the child, majority can be attained earlier.13 Of the regional instruments, only the African Charter on the Rights and Welfare of the Child prescribes one set age as the ‘end’ of childhood: 18.14 As stated earlier, the Inter-American Court of Human Rights (IACtHR) has primarily relied on the wording of Article 1 CRC in defining childhood. However, the Court has been prepared in at least one case to recognise that, where the national age of majority is higher than 18, then a child under

9 Council of the European Union, Charter of Fundamental Rights of the European Union: Explanations relating to the Complete Text of the Charter (Office for Official Publications of the European Communities, 2001) 41. 10 African Charter on the Rights and Welfare of the Child, Art 2. 11 See, eg Argentine Constitution, s 75(22), which accords constitutional status to the American Convention of Human Rights, including Art 4. Section 75(23) appears to create a socio-economic right for the unborn requiring the state ‘[t]o issue a special and integral social security system to protect children from abandonment, since pregnancy up to the end of elementary education, and to protect the mother during pregnancy and the period of lactation’; Irish Constitution, art 40.3.3, in which the state acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right. 12 See, eg the well-developed right to life (Indian Constitution, art 21) jurisprudence of the Indian Supreme Court under which, in the context of children’s socio-economic rights, the Court has held, for instance, that the fundamental right to education flows from art 21 (Unni Krishnan, JP and others v State of Andhra Pradesh and others 1993 AIR 217). This jurisprudence does not, however, concern the right to life of the unborn. 13 For more on the definition of ‘child’ under the CRC, see P Alston, ‘The Legal Framework of the Convention on the Rights of the Child’ (1992) 91(2) Bulletin of Human Rights 1, 2–4. 14 Above n 10.

Of Definitions and Other Things 5 that age qualifies as a child for the purposes of Article 19, even if she is over 18.15 In terms of the ECHR, Kilkelly has noted that once a child falls within the definition of a minor or juvenile for the purposes of the relevant domestic law, then this will not be an issue when the matter is reviewed by the ECtHR, unless the age limit is arbitrarily or illegally applied.16 Thus, while international law favours the age of 18 as being the ‘cut-off’ for the purposes of childhood, it explicitly recognises that there can be, and are, significant variations in the practice of signatory states. The law has a tendency to think in terms of binary classifications. Consequently, the workability (in terms of clarity and administrative efficiency) of an age-based definition of ‘child’ in a legal context is taken to outbalance the arbitrariness of such a definition; a fact that is based on the perceived ‘costs’ and subjectivity associated with alternative processes entailing individual determinations of maturity, as well as concerns about the measurement of persons against a particular norm of the ‘able bodied prime age adult’, such as ‘capability’ or ‘merit’ in order to determine the treatment of those persons.17 The ‘arbitrariness’ in question arises from the fact that an individual may not conform with the presumptions about competence, maturity, autonomy, knowledge, levels of education, participatory capabilities, etc, upon which such an age-based definition is based. Many of the arguments presented in this work are concerned with the inability of children to exert effective influence on political decision-making processes and the appropriate role to be adopted by the judiciary in relation to their rights and interests in light of this. The key reason for children’s incapacity to exercise influence on democratic processes is their unenfranchisement. Therefore, I define a ‘child’ as any person who has not yet reached adulthood in terms of being of an age to participate in democratic decision-making processes by exercising their right to vote. Upon reaching voting age, a person may be regarded as an adult, capable of exercising influence on the legislative and executive organs directly, as opposed to being dependent on others to ensure the enforcement and protection of his or her rights within the democratic system. The undoubtedly somewhat arbitrary fixing of the minimum voting age is demonstrated by the variety in ages of enfranchisement in different jurisdictions,18 as well as the existence of varying ages of enfranchisement for

15 Case of the ‘Juvenile Reeducation Institute’ v Paraguay, Judgment of 2 September 2004, Inter-Am Ct HR (Ser C) No 112 (2004). 16 U Kilkelly, The Child and the European Convention on Human Rights (Aldershot, Ashgate Dartmouth, 1999) 22. 17 S Fredman, ‘The Age of Equality’ in S Fredman and S Spencer (eds), Age as an Equality Issue (Oxford, Hart Publishing, 2003) 21, 40. 18 Of the 192 members of the United Nations, the vast majority (including Canada, Australia and all the EU Member States except Austria) have a minimum voting age of 18. The following countries and Crown Dependencies have minimum voting ages that differ from 18: 16

6 Children and Socio-economic Rights different elections within individual jurisdictions. Furthermore, the age of enfranchisement will not necessarily correspond to the age at which children ‘achieve’ adulthood in terms of reaching full legal capacity or other aspects of adult status; nor will it necessarily match the age at which children may exercise functions and jobs that are traditionally associated with adulthood, such as driving or working. For instance, in the Republic of Ireland, a person of 17 can serve in the army but will not be treated as an adult in terms of having reached full legal majority, enfranchisement and constitutional rights purposes.19 Certainly, the difference between the de facto and the de jure competence of an individual may not be perfectly reflected in the age chosen by the legislature (or specified in the constitution) as the voting age. The same is undoubtedly true of any ‘age-based’ classification due to the vast differences in development and maturity between individuals. The linkage of the end of ‘childhood’ to enfranchisement becomes particularly complicated when applied to jurisdictions where children become enfranchised for different elections at different ages. For instance, in various Lander in Germany, the voting age in local elections is 16 rather than 18. On the other hand, in Italy, an individual cannot vote in elections for the Senate until the age of 25. The question arises whether children become adult when they are enfranchised for any or for all public elections. The simplest answer seems to be ‘any’ as this is the age at which children are able to exert some influence on democratic decision-making processes. However, it must be borne in mind that where a person is enfranchised for some elections and not for others they may not participate on equal terms with other ‘fully enfranchised’ members of society and some of the arguments made in this work may apply to them to varying degrees (as, indeed, they may to any politically disadvantaged or excluded minority). Problematically, in some of the countries discussed in this work, the age of enfranchisement does not coincide with the definition of a child for the purposes of constitutional rights. For instance, a number of provisions of

in Austria, Brazil, Cuba, Guernsey, Isle of Man, Jersey and Nicaragua; 17 in East Timor, Indonesia, North Korea, the Seychelles and the Sudan; 19 in South Korea; 20 in Cameroon, Japan, Nauru, Taiwan and Tunisia; 21 in the Central African Republic, Fiji, Gabon, Kuwait, Malaysia, Maldives, Monaco, Morocco, Oman, Pakistan, Samoa, Singapore, Solomon Islands, Tokelau and Tonga. 19 While the Irish Constitution does not expressly define ‘child’, there is a statutory definition contained in both the Child Care Act 1991 and the Children Act 1997, stating that every person under the age of 18 years is a ‘child’ for the purpose of these Acts, while the Age of Majority Act 1985 provides that the age of majority is 18, unless someone has already married. In Sinnott v Minister for Education [2001] IESC 39, the Supreme Court held that the state’s constitutional obligation to provide free primary education applies to children only, not adults, and ceases at the age of 18. In TD v Minister for Education [2001] IESC 86 all parties, the High Court and the Supreme Court proceeded on the basis that the state’s duty to vindicate the constitutional socio-economic rights at issue ended upon the applicants reaching the age of 18.

Emergence and Reframing of Children as Socio-economic Rights-holders 7 the Indian Constitution accord rights to ‘children’ but these child-specific rights appear to be reserved to persons under the age of 14.20 The age of enfranchisement is 18 while the definition of a ‘child’ or ‘minor’ for other purposes varies depending on the context.21 Where children cannot vote and are excluded from the rights accorded to ‘children’ in terms of the constitution, they are in a particularly vulnerable position as they have neither the ability to exert direct influence on democratic decision-making, nor can they rely on the ‘special rights and protections’ associated with childhood. This book does not sub-divide the class of ‘children’ into other categories (such as ‘infant’, ‘teenager’, ‘juvenile’, ‘adolescent’ and ‘youth’) although these terms are employed descriptively. The vagueness and lack of consistency in the usage of these terms, as well as the fact that arguments based on children’s exclusion from democracy apply to all children below the age of enfranchisement, lead me to avoid dividing children up into further age-based groupings. Although my arguments may apply varyingly to different groups of children, this is not always simply attributable to age. For instance, groups of children may occupy quite different positions in relation to exerting pressure on democratic decision-making processes depending on factors such as their socio-economic class, level of education and the degree of political participation or views of their parents. THE EMERGENCE AND REFRAMING OF CHILDREN AS SOCIO-ECONOMIC RIGHTS-HOLDERS

Having defined who we are talking about, it is time to make it clear why it is necessary to talk about them. It is crucial that more attention be paid to children as socio-economic rights-bearers, independent of the society or family unit of which they may form part. Children are now formally recognised as a minority rights group through the provision of their own UN Convention, and share many experiences of oppression with other minority groups in society.22 They wield no significant political, legal or (strategic) economic power and are generally utterly excluded from the vast majority of important societal institutions (elected bodies, banks, trade unions, etc) whether political, financial or labour-related.23 Moreover, they are excluded from those decision-, policy- or law-making bodies which are of the greatest importance to them, such as school boards, government committees on education, juvenile justice and child health services. Traditionally, when 20

See Indian Constitution, arts 21A, 24, 45 and 51A(k). See A Bajpai, Child Rights in India: Law Policy and Practice, 2nd edn (New Delhi, Oxford University Press, 2006) 2–15. 22 M John, Children’s Rights and Power: Charging Up for a New Century (London, Jessica Kingsley Productions, 2003) 196. 23 For more on this, see Chapter 2. 21

8 Children and Socio-economic Rights societies have considered children as a discrete group, it has generally been in order to dismiss them as irrational, legally incompetent beings who are inferior to adults and whose enjoyment of rights is subject to the views of their parents or the state, or both. Admittedly, the observations made above and later in this chapter about ‘children’ can be challenged as sweeping generalisations, which suggest that children are a homogenous group whose interests and opinions are necessarily identical and who invariably face the same challenges. Clearly, they are not. Like many other social groups, children will differ from each other in terms of gender, race, socio-economic status and other condition. However, I would argue that children are sufficiently similar (and differentiated from other groups) in terms of shared characteristics (for instance, age, needs, interests) and social, legal and political position, for it to be justifiable to refer to ‘children’ as a whole in constructing my argumentation.24 The principal reason that there has been such limited consideration of children as a social group and as bearers of socio-economic rights is that, until relatively recently, children were regarded as objects of parents’ rights and duties, rather than as individual rights-holders themselves. Historically, children’s socio-economic status was considered to be dependent upon (indeed, inextricable from) that of their family. As a consequence, they did not warrant separate consideration. There has been public neglect of children as an aggregated group, justified by the theory that they are solely the responsibility of their parents. Effectively, children’s family status has served to locate them outside the polity. The perception of children as rooted in a family that is willing and able to meet their needs fails to take into account the fact that the close relationship between parents and children, coupled with the dependency of children on adults, do not establish an identity of their interests such that the consideration of parental interests derivatively ensures equal consideration of children’s interests.25 Indeed, as McLeod highlights, a refusal to consider the child’s entitlement to resources as independent of the child–parent relationship amounts to a failure to acknowledge the status of children as distinct members of the moral community with distinct interests who are appropriately viewed as self-originating sources of valid moral claims with an equal moral status.26

24 For more on the conceptualisation of social groups, see Iris Marion Young, Inclusion and Democracy (Oxford, Oxford University Press, 2000) ch 3. 25 C Macleod, ‘Liberal Equality and the Affective Family’ in D Archard and C Macleod (eds), The Moral and Political Status of Children (Oxford, Oxford University Press, 2002) 212, 219. 26 Ibid 219–20.

Emergence and Reframing of Children as Socio-economic Rights-holders 9 Children’s socio-economic conditions are undoubtedly almost invariably linked to those of parents or relatives who live with them. However, although important resources are often delivered to children from parents, this is not always the case. The presumption that relationships within the family are necessarily underpinned by principles of social justice ignores the fact that the family is neither exempt from, nor unaffected by, the attitudes and practices of society. The family, like other social institutions, reflects public assumptions and norms that are adultist, gendered, racialised and heterosexist.27 For instance, sexism in the broader societal sphere is reflected by the relatively disadvantaged position experienced by many girl children in terms of the distribution of socio-economic rightsrelated resources within the family context, such as food and education.28 In addition, the presumption that children’s socio-economic rights-related needs will be met by their family/carers and the traditional tendency of the state to provide for children’s socio-economic rights through the unit of the family does not serve (and, indeed, may disadvantage) those children who, for various reasons, do not have, or reside with, family/carers. There has also been a failure to take proper account of children’s needs when considering the needs of ‘households’, resulting in the underestimation of the needs of child-members of households and the over-weighting of those of adults. For instance, Eurochild highlights that in the European Community Household Panel, CHP weighing of an adult was 1, with each additional adult or child above 14 as 0.5 and children under 14 as 0.3, a weighing scale that could underestimate the ‘weight’ of children in the household.29 Crucially, the frequent delivery of socio-economic rights-related resources from parents to children neither removes nor nullifies the obligation of the state to children. In addition to its default role to provide socio-economic rights where adult care-givers or parents cannot do so, there are certain rights, such as elements of the rights to social security,30 that only the state is in a position to deliver. It is crucial, therefore, that children’s entitlement to

27 M Moosa-Mitha, ‘A Difference-Centred Alternative to Theorization of Children’s Citizenship Rights’ (2005) 9(4) Citizenship Studies 369, 384, 385. 28 For more on gender discrimination and discrimination against children in relation to the right to food in the family and other contexts, see, eg Human Rights Council Advisory Committee, Preliminary Study of the Human Rights Council Advisory Committee on Discrimination in the Context of the Right to Food, UN Doc A/HRC/13/32 (22 February 2010). 29 EURONET, Contribution to the European Roundtable on Social Exclusion Workshop 2, The Instruments for the Governance of Multilevel Welfare Systems (European, National, Regional and Local) and for the Promotion of the Mobilisation of the Actors (2003) 2. 30 For instance, child support benefit and social services. For more on the child’s right to social security, see Committee on Economic, Social and Cultural Rights (ComESCR), General Comment No 19 on the Right to Social Security (art 9), UN Doc E/C.12/GC/19 (2008) paras 18 and 26.

10 Children and Socio-economic Rights resources should be viewed as independent of the parent/adult care-giver–child relationship. There has been definite progress in terms of attitudes towards children. Children are generally no longer regarded merely as the property or extension of their parents, but as individuals with their own rights.31 However, children are still severely disadvantaged in society when compared to adults and certainly do not occupy a position of equality with them. Indeed, some commentators have gone so far as to argue that ‘adultism’—the oppression of children by adults—has the same power dimension in children’s lives as sexism or racism.32 One does not, however, have to go as far as this to agree with Mayall that, when one studies children as a social group in any society, one is forced to recognise the subordination of that group in the social order. Childhood as social status is defined within the generational order as inferior to adulthood.33 Children occupy a different position in society from that of other socially disadvantaged groups. Maslow Cohen notes that, in comparison to older persons, people living with disabilities and the incarcerated (three other groups of ‘public dependants’), children’s dependency is arguably the more complete and profound due to the absence of a suitable engine to forward their claims to public resources.34 One might claim, as O’Neill does, that, unlike other socially disadvantaged groups who have benefited from the use of judicial activism by the courts to achieve social reform, children suffer from a natural rather than an artificially produced dependence on adults, based as it is on factors such as children’s relative physical weakness, inexperience and immaturity.35 On such a view of children, child dependence cannot be ended merely by social or political change. The only escape for children is to grow up. Children are, inevitably, dependent. Similarly, children will always be a vulnerable group due to the fact that their vulnerability cannot be fully remedied by empowerment measures.36 O’Neill’s claims

31 For a treatment of children as parental property in a particular domestic context (the United States) see B Bennett-Woodhouse, ‘Who Owns the Child?: Meyer and Pierce and the Child as Property’ (1992) 33 William and Mary Law Review 995, 1036–51. 32 See, eg J Roche, ‘Children: Rights, Participation and Practice’ (1999) 6 Childhood 475, 478. 33 B Mayall, ‘The Sociology of Childhood: Children’s Autonomy and Participation Rights’ in A Smith, M Gallop, K Marshall and K Nair (eds), Advocating for Children: International Perspectives on Children’s Rights (Dunedin, University of Otago Press, 2000) 126, 132. 34 Examples of engines to forward disadvantaged groups’ claims to public resources would be the vote in the case of the elderly; the equality principle in the case of the disabled; and the public’s apprehensions of urgency and necessity in the case of the incarcerated (J Maslow Cohen, ‘Competitive and Cooperative Dependencies: The Case for Children’ (1995) 81 Virginia Law Review 2217, 2227). 35 O O’Neill, Constructions of Reason: Explorations of Kant’s Practical Philosophy (Cambridge, Cambridge University Press, 1989) 202. 36 Children are, of course, not the only group for whom vulnerability cannot be remedied by empowerment measures. In her work, for example, Fineman argues for a conception of

Emergence and Reframing of Children as Socio-economic Rights-holders 11 are open to strong criticism for their failure to acknowledge the way in which the ‘dependence’ (or, indeed, the vulnerability) of children is, at least partially, the outcome of specific social, historical and cultural attitudes towards, and treatment of, children, rather than being an inevitable result of childhood itself. Inaccurate conceptualisations of children as vulnerable, dependent and passive—and their resultant location in positions in which their agency goes unrecognised and unexercised—has given rise to a vicious circle. False perceptions of children are reinforced by, and give rise to, the limited opportunities available to children to demonstrate their competence and agency. In the same vein, O’Neill’s presumption that childhood is a stage of life from which children are helped and urged to emerge by those who have most power over them fails to take into account the interest that adult society may have in perpetuating childhood in order to maintain existing power relations, which privilege them.37 Evidence for this is provided by the frequent reluctance of adults to cede power to children in terms of decision-making in family, health and other contexts. However, while it is important not to overstate the extent of children’s inherent biological, physical and psychological dependence and/or vulnerability, there can be no doubt that there are many children, particularly younger children, whose dependence and vulnerability cannot be fully (or even largely) addressed through empowerment measures. Nor should such dependence and vulnerability be ignored by the courts and other decision-makers when addressing children’s rights. I am certainly not suggesting that there is no role for protectionism and paternalism in law and society’s treatment of children. Children are not identical to adults and differential treatment of them (or at least, the less ‘adult-like’ of them) by the drafters and enforcers of law and policy is not necessarily unacceptable or, indeed, undesirable.38 This is true when dealing with either a formal or a substantive model of equality.39

vulnerability ‘as a universal, inevitable, enduring aspect of the human condition that must be at the heart of our concept of social and state responsibility’ (M Fineman, ‘The Vulnerable Subject’ (2008) Yale Journal of Law and Feminism 1, 8). 37

O’Neill, above n 35, 203. For a discussion of the permissibility or not of differential treatment of children in terms of international human rights law on equality and non-discrimination, see C Breen, Age Discrimination and Children’s Rights: Ensuring Equality and Acknowledging Difference (Dordrecht, Martinus Nijhoff Publishers, 2006). 39 A model of formal equality, which is premised on the notion of ‘like’ case being treated alike, would not require those in dissimilar situations (ie adults and children) to be treated the same. In turn, a model of substantive equality may necessitate the enactment of positive measures aimed at the advancement of children in order to counteract the socio-economic disparities and power relations, which reinforce and perpetuate inequality between children and adults. 38

12 Children and Socio-economic Rights The work of ‘child liberationists’ such as John Holt and Richard Farson, which argues for the extension of the rights, privileges, duties and responsibilities of adults to children, fails to adequately appreciate the way in which the exercise of such rights (not to mention duties) may impact on the child’s enjoyment of other rights, both now and in the future.40 It is, however, important to bear in mind that paternalistic laws and policies are frequently premised on disputable presumptions about the vulnerability, incapacity, immaturity and irrationality of children, rather than the genuine characteristics of the children subject to them. Such measures also generally fail to take into account and accord equal weight to the incapacity and irrationality of adults. As a result, they can serve to reinforce and perpetuate negative conceptualisations, stereotypes and perceptions of children. There is thus a need to consider the determination and/or the justification of the parameters of acceptable paternalism. This will entail the adoption of a self-conscious approach to the understandings of children upon which the determination of such parameters is based. I would agree with arguments made by Freeman in favour of ‘liberal paternalism’ (based on a Rawlsian conception of the social contract underpinned by a substructure of equality and autonomy) which legitimises intervention directed at conduct that is irrational when judged against a neutral theory of the good.41 Such a test of ‘irrationality’ must not be based on the subjective values of the ‘would-be protector’ but must be limited so that it justifies intervention only to the extent necessary to prevent the immediate harm or to develop the capacities of rational choice by which the individual may have a reasonable chance of avoiding such harms.42 Freeman’s proposed limitations on children’s autonomy accommodate the needs both to ensure the protection and support for the child and to develop the child’s capacity for self-determination. Relying on the child’s capacity for autonomy, rather than actual autonomy, such an approach serves to protect the child’s future autonomy while permitting pluralistic visions of the good. It thus maximises the autonomy and equality of the child while shielding him/her from danger. I would add to Freeman’s model by arguing that paternalistic constraints on children must be consistent with the right of the child who is capable of forming her own views to express those views freely in all matters affecting her and have them given due weight in accordance with the age and maturity of the child. Such a requirement would acknowledge the child’s agency and promote the child’s capacity for selfdetermination and autonomy by requiring consultation and participation in

40 See R Farson, Birthrights (New York, Macmillan, 1974); J Holt, Escape from Childhood (New York, Dutton, 1974). 41 M Freeman, ‘The Limits of Children’s Rights’ in M Freeman and P Veerman (eds), The Ideologies of Children’s Rights (Dordrecht, Martinus Nijhoff Publishers, 1992) 29, 37–39. 42 Ibid 38.

Children: A Special Case? 13 decision-making.43 However, ultimately it would not require that the child’s decision on matters affecting them or their rights should be automatically implemented where this would have negative implications for their future capacity for autonomy. Judicial awareness of the interplay between socio-economic rights, paternalistic protections and child autonomy/agency (both current and future) is clearly demonstrated in the jurisprudence of the Inter-American Court of Human Rights. In its Advisory Opinion on the Juridical Condition of the Child,44 the Court stated that: education and care for the health of children require various measures of protection and are the key pillars to ensure enjoyment of a decent life by the children, who in view of their immaturity and vulnerability often lack adequate means to effectively defend their rights. (emphasis added)45

This statement clearly reflects a perception of children as vulnerable, largely passive, beings who require positive intervention on their behalf to ensure the realisation of their rights. However, the IACtHRhad previously commented in this decision that: [the best interests principle] is based on the very dignity of the human being, on the characteristics of children themselves, and on the need to foster their development, making full use of their potential, as well as on the nature and scope of the Convention on the Rights of the Child. (emphasis added and footnotes omitted)46

Here, the Court specifically justified the paternalistic best interests principle in terms of, amongst other things, the need to develop the child’s potential; that is, to maximise the child’s future capacity for autonomy. CHILDREN: A SPECIAL CASE?

This work focusses on socio-economic rights due to the fundamental importance of those rights to children. While civil and political rights become increasingly relevant as children advance in age, socio-economic rights are of critical importance from birth.47 This is due to their direct link with the child’s physical and mental development. Admittedly, there is no question that some civil and political rights, such as those rights relating to the protection of life and bodily integrity, are fundamental to ensuring that a child’s current welfare and future development are not impaired. This is 43 This condition would also accord with Art 12 CRC on the right of the child to be heard. For more on Art 12, see Chapter 2. 44 Advisory Opinion OC-17/2002, above n 6. 45 Ibid para 86. 46 Ibid para 56. 47 V Leary, ‘The Social and Economic Rights of the Child’ (1995) Law and Policy 353, 353.

14 Children and Socio-economic Rights not necessarily the case, however, with regard to others, such as the right to freedom of peaceful assembly and association. Wringe highlights two crucial points that must be borne in mind when considering children vis-à-vis their enjoyment of socio-economic rights. First, due to their nature and condition, children have a reduced capacity to meet their socio-economic needs either by obtaining or creating sustenance from the resources of their environment.48 Secondly, they are less likely to have the skills necessary to gain a stake in the resources of the community by negotiating special rights (ie rights which arise from transactions or relationships) for themselves.49 Thus, children have only a limited capacity to guarantee their socio-economic rights themselves. There are a number of other ways in which children are in a significantly different position from adults with regard to their enjoyment of socioeconomic rights. First, child and adult members of the same family or society are not necessarily accorded the same socio-economic rights. In a number of constitutional frameworks, children are accorded rights that differ from those of adults in terms of the range of the rights accorded. One frequent example is the reservation of the right to primary education to persons of a particular age. In addition, there may also be a difference in terms of the obligations imposed by such rights. Article 44 of the Colombian Constitution describes children’s socio-economic rights as ‘fundamental’ and hence subject to immediate application by the courts. This contrasts with the constitutional socio-economic rights of other groups, which have generally only been held to adopt a fundamental character in specific, limited circumstances. Indeed, there may even be a difference in the rights accorded to older and younger children in different jurisdictions, with the latter group being extended more extensive entitlements and protections. Looking at Colombia again, while article 44 furnishes ‘children’ generally with a broad range of socio-economic rights, article 50 states that any child under a year old who may not be covered by any type of protection or social security will be entitled to receive free care in all health institutions that receive state subsidies. Meanwhile, the special rights of ‘adolescents’ are the focus of article 45, which includes the provision that ‘the state and society guarantee the active participation of adolescents in public and private organisations that are responsible for the protection, education, and progress of youth’. Moreover, those rights that children do share with adults may need to be implemented and enforced in a different way than they would be for the adult group. It is vital that this be taken into account by decision-makers if children’s rights are to be adequately given effect to.

48 C Wringe, Children’s Rights: A Philosophical Study (London/Boston, MA, Routledge and Kegan Paul, 1981) 135–36. 49 Ibid.

Children: A Special Case? 15 Furthermore, children are often affected in a different way from adults by violations of a similar nature.50 The physical and psychological effects that children suffer as a result of violations of their socio-economic rights will generally be greater than those experienced by adults due to their age and lower level of physical and mental development. This is true both in relation to (a) the immediate impact that violations of the right to health may have on a child’s physical and psychological state, and (b) the longterm detrimental effects on the child’s development and future capacity for autonomy resulting from such a violation. This can be demonstrated by three brief examples.51 The first concerns the right to food. An adult who lives through a situation in which he suffers from malnutrition over a protracted period may generally be expected to continue his life in a largely normal manner once this period of hardship has come to an end.52 On the other hand, a child suffering from a violation of the right to food/nutrition over the same length of time is likely to suffer far greater effects, both in the short and the long term. In the short term, such a child may suffer from, amongst other things, lower resistance to illness. Long-term effects may include poor physical and cognitive development.53 While an adult may suffer health complications stemming from malnutrition, their long-term health and development is unlikely to be as gravely affected as would be that of a child. Thus, identical violations of the right to food will have a far greater impact on children than on adults. The former Special Rapporteur on the Right to Adequate Housing highlighted the fact that children are disproportionately vulnerable to the negative effects of inadequate and insecure living conditions.54 Homeless children, and particularly younger children, are considerably more vulnerable than their adult counterparts, both physically (in terms of size, strength and their resultant decreased ability to provide for their physical needs) and psychologically (due to lack of life experience and maturity, which renders them susceptible to both psychological trauma, exploitation and abuse). 50 ‘Children’s Rights’ in Office of the High Commissioner for Human Rights, Training Manual on Human Rights Monitoring (Geneva, OHCHR, 2001). 51 There are undoubtedly groups of adults within society that are at least as vulnerable as children due to having a disability, being pregnant, older or illiterate in a developed country, etc. The observations above are based on a comparison of the relative situations of an adult of reasonable good health and education by the standards of the society of which she forms part with that of an average child in the same society. 52 The term ‘malnutrition’ is used to refer to a number of diseases, each with a specific cause related to one or more nutrients (for example, protein, iodine or calcium) and each characterised by cellular imbalance between the supply of nutrients and energy, on the one hand, and the body’s demand for them to ensure growth, maintenance and specific functions, on the other. (Source: WHO, World Health Information Fact Sheet 199, available at www.who.int.) 53 Ibid. 54 For more, see UN Special Rapporteur, Report on Adequate Housing as a Component of the Right to an Adequate Standard of Living, UN Doc A/HRC/7/16 (2008) para 42.

16 Children and Socio-economic Rights Children are likely to suffer more than adults in terms of their health in the short term, while in the long term their education will be impacted due to their homelessness resulting in reduced access to educational institutions and programmes. Finally, children are also more acutely affected than adults by violations of their right to education. While there can be no doubt that the interruption of an adult’s right to education may impact detrimentally on their future in terms of, for example, employability, it is probable that the interruption of a child’s education will have more serious consequences. The nature of education that the child is likely to be receiving (generally primary or basic) is more fundamental than that generally undertaken by an adult. Amongst other things, the failure to ensure that a child benefits from education will impact on her developmental needs, diverse evolving capacities and her acquisition of life-skills to a much greater extent than it would on an adult who has already received the benefit of basic education. In the long term, her opportunities for employment will also suffer.55 While the nature of the socio-economic rights violations experienced by children and other socio-economically disadvantaged groups may be similar, it is important to bear in mind that children face different challenges in terms of the vindication of their socio-economic rights than do many other vulnerable groups. It is not that children are necessarily more vulnerable than all other social groups but that they are differently vulnerable. Children and women are often spoken about in the same breath.56 Indeed, Minow has argued that ‘children’s rights owe some portion of their origins to struggles for women’s rights, and the conceptual and practical problems raised by children’s rights help to illuminate obstacles encountered by women’s rights as well’.57 However, concern has been expressed that the emphasis on the social linkage between women and children in relation to child-bearing and childcare, as well as the conglomeration of women and children into one group for consideration in the context of rights, potentially pose obstacles to the emergence and recognition of the rights of both groups.58 Nussbaum’s observation that women’s individual

55 For a discussion of how education (in particular, literacy) impacts upon people’s other ‘capabilities’ (some of which correspond to the ability to exercise particular civil and political and socio-economic rights), see M Nussbaum, ‘Women’s Education: A Global Challenge’ (2004) 29 Signs 325, 332–35. While Nussbaum focusses primarily on education for women, many of her comments apply to education of members of both sexes. 56 For a comparison of the characteristics of social status of women and children as groups, see A Oakley, ‘Women and Children First and Last: Parallels and Differences Between Women’s and Children’s Studies’ in B Mayall (ed), Children’s Childhoods: Observed and Experienced (London, Falmer Press, 1994) 13, 14–19. 57 M Minow, ‘Rights for the Next Generation: A Feminist Approach to Children’s Rights’ (1986) 9 Harvard Women’s Law Journal 1, 3. 58 See, eg the report of the discussion between proponents of the Committee on the Elimination of All Forms of Discrimination Against Women and the UN Committee on the

Children: A Special Case? 17 well-being has too rarely been taken into account in political and economic planning and measurement holds true of children, who have also been treated as parts of a larger unit, rather than valued as sources of agency and worth in their own right.59 Key concerns and rights-related issues of both groups and the regulation thereof have been, and continue to be, relegated to the private sphere. Many of the generalisations that were (and sometimes still are) made about women in order to justify their social subjugation and exclusion from important decision-making institutions and processes are similarly applied to children (for instance, labelling them as irrational, incapable, morally inferior, incompetent, emotional, immature, not to mention child-like!). Crucially, however, women have greater economic and social power than children and are more likely to be able to meet their socio-economic needs themselves. Their enfranchisement makes them a constituency to which politicians have an interest in catering. This, together with the fact that women can serve as politicians themselves, ensures that their socio-economic rights are more likely to be taken into account and given effect by the elected branches of government than those of children. The same is true of older persons. Indeed, bearing in mind the ‘ageing’ population of both developing and developed countries,60 the political influence of older persons is likely to increase proportionately in relation to that of other social groups in the future.61 Older persons can also rely on the increased awareness of, and proscription of, age discrimination in seeking to advance their rights.62 Unfortunately for children, the relatively recent interest in ageism, as well as the activities of law and policy-makers, academics and other actors on this issue, have been primarily motivated by concern about treatment of an ageing population in the global North (and particularly Europe).63 There has thus far only been extremely limited

Rights of the Child (ComRC) at two meetings co-hosted by the International League for Human Rights and UNICEF in March 1996 set out in C Price Cohen, ‘The United Nations Convention on the Rights of the Child: A Feminist Landmark’ (1997) 3(29) William and Mary Journal of Women and the Law 27, 68–71. For an argument in favour of considering women’s rights and children’s rights together, see J Todres, ‘Women’s Rights and Children’s Rights: A Partnership with Benefits for Both’ (2004) 10 Cardozo Women’s Law Journal 603. 59 M Nussbaum, Sex and Social Justice (New York/Oxford, Oxford University Press, 1999) 63. 60 For more on the ‘ageing’ global population, see K Kinsella and W He, US Census Bureau, An Aging World: 2008 (Washington, DC, US Government Printing Office, 2009). 61 For more on this point see Chapter 2. 62 For a general discussion of the key issues surrounding the treatment of age as a ground of prohibited discrimination, see N Bamforth, M Malik and C O’Cinneide Discrimination Law, Theory and Context: Text and Materials (London, Sweet & Maxwell, 2008) 1102–19. 63 See Fredman, above n 17, 23–24.

18 Children and Socio-economic Rights consideration of differential treatment of children as a discrimination issue in terms of either domestic or international human rights law.64 People living with disabilities are another vulnerable group. The disabled share many of the problems experienced by children, including historical ‘invisibility’ as subjects of international human rights law, infantilisation, and subjection to legal and non-legal paternalistic measures.65 Unlike poor children, however, they constitute a cross-class group (although there is evidence that people living with disabilities are more likely to live in poverty than others).66 People living with disability are not uniformly disenfranchised and barred from running for public office. Moreover, in theory at least, they may generate more sympathy than children, particularly socioeconomically disadvantaged children, who may be perceived negatively by other enfranchised societal groups.67 If persons living with disabilities are more ‘sympathetic’ figures than poor children, then there is arguably more likely to be a lobby group or constituency prepared to campaign or vote for measures intended to vindicate their rights than would exist for socioeconomically disadvantaged children. (Such an assertion is belied, however, by a growing awareness of the incidence of disablist ‘hate-crime’ in some jurisdictions,68 as well as the widespread discrimination faced by people living with disabilities globally). Furthermore, while discrimination on the grounds of childhood status is still regarded as widely permissible (and, indeed, necessary in some circumstances), discrimination on the grounds of disability has come to be generally recognised as unacceptable, on paper at least. This is testified to by the recent adoption and relatively rapid entry into force of the International Convention on the Rights of Persons with Disabilities, which strongly prohibits discrimination on the grounds of

64 One of the few works in this area is by Breen, above n 38, which, amongst other things, contains a discussion of age-based discrimination in relation to children and the way in which numerous jurisdictions have proscribed age-based discrimination in relation to older persons but not children. For more recent examples of domestic prohibitions on discrimination against children on the basis of age, see Child Rights Information Network, Global Report on Laws Protecting Children from Age Discrimination (London, CRIN, 2009), available at www.crin. org/docs/Global_age_discrim_final.pdf. 65 For more on the traditional invisibility of people with disabilities under international human rights law and more broadly, see G Quinn et al, Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (New York/Geneva, OHCHR, 2002). 66 See, eg the discussion of the interrelationship or ‘vicious circle’ between poverty and disability in R Yeo, Disability, Poverty and the New Development Agenda (DFID/Disability Knowledge and Research Programme, 2005), available at www.healthlink.org.uk/projects/ disability/poverty_new-development.html. 67 See Chapter 2 for more on negative societal perceptions of children. 68 See, eg in a UK context, Crime Prosecution Service, Hate Crime Report 2008–2009 (London, CPS, 2010), which showed prosecutions for disablist hate crime increasing from 183 in 2007–08 to 393 in 2008–09.

Children: A Special Case? 19 disability.69 (Notably, while the CRC is the most ratified of all UN human rights treaties, it does not explicitly prohibit discrimination on the basis of the status of childhood.) Prisoners are also differently situated to children in terms of having their socio-economic rights guaranteed. Although they are a far less ‘sympathy-generating’ group than children, it is easier to convince society of the government’s responsibility towards them, even to the extent of vindicating their socio-economic rights. This is due to the fact that when the state takes away an individual’s liberty and thus renders him unable to meet his socioeconomic needs himself, the state’s responsibility for ensuring those needs are satisfied is clear. In contrast, the extent of state responsibility to address poverty generally is the subject of much greater controversy. This is particularly so in light of moves in many jurisdictions in recent years to restructure the delivery of welfare and other socio-economic rights-related goods and services along neo-liberal lines, as well as the widespread ‘stigmatisation’ of poverty and the poor by politicians and the media.70 In addition, in a number of jurisdictions, prisoners at different stages of incarceration have the right to vote.71 They can thus have direct, albeit limited, influence on democratic decision-making processes.72 In considering the position of children’s enjoyment of their socio-economic rights vis-à-vis such enjoyment by other groups, it becomes clear that while children are in a unique position, a number of the factors that contribute to their societal, political and economic exclusion also apply to non-children to varying extents, resulting in an overlap in the nature of the marginalisation and exclusion experienced by children and other vulnerable social groups. Thus, while premised on the specific situation of children, elements of the argumentation in this work will apply to the position of other non-child groups to some extent. This will be particularly true of certain categories

69 See, eg International Convention on the Rights of Persons with Disabilities, Art 4. Article 3(h) on ‘General Principles’, Art 7 on ‘Children with Disabilities’ and Arts 24 and 25 on ‘Education’ and ‘Health’, respectively, of the Convention are of particular importance to the enjoyment of socio-economic rights by children living with disabilities. 70 These observations are made by Margot Young in relation to Canada specifically but they are true of a large number of jurisdictions (M Young, ‘Introduction’ in M Young et al (eds), Poverty: Rights, Social Citizenship, and Legal Activism (Toronto, UBC Press, 2007) 1. 71 For further discussion of prisoner voting and an analysis of specific practices in a wide range of countries, see B Rottinghaus and G Baldwin, ‘Voting Behind Bars: Explaining Variation in International Enfranchisement Practices’ (2007) 26 Electoral Studies 688. 72 For instance, the right of all prisoners to vote in Canada was established by the Supreme Court in Sauvé v Canada [2002] 3 SCR 519. Media reports on the 2006 election suggested that prisoners were voting in large numbers in an effort to prevent the election of the Conservative Party which favoured the reduction of rights and benefits for prisoners, including the right to vote. CTV.Ca News Staff, ‘Prisoners exercise their right to vote’, available at www.ctv. ca/servlet/ArticleNews/story/CTVNews/20060112/elxn_prisoners_vote_060111/20060113?s_ name=election2006&no_ads.

20 Children and Socio-economic Rights of non-citizens,73 such as illegal migrants and irregular migrants. Like children, non-citizens are generally disenfranchised, resulting in their being excluded from participating in, or influencing, democratic law and policymaking processes.74 In addition, specific groups of non-citizens, including economic migrants and asylum seekers, are frequently the subject of societal hostility or discrimination, often to a greater extent than children. Admittedly, as adults, they are arguably more capable of fending for their own socio-economic needs and, thus, are less likely to suffer from violations of their socio-economic rights. Furthermore, while they are arguably even less likely to be able to rely on other voting members of society to forward their interests than children are,75 they are less likely to be excluded from participation in institutions such as trade unions or social movements which can operate to exert indirect effect on democratic decision-making institutions.76 In practice, non-citizens in a number of jurisdictions make up or are represented by lobby groups whose activities impact on political decision-making relating to their rights.77 A final crucial point to note is that children who form part of other social minority groups are likely to be more vulnerable to violations of their socioeconomic rights than children who do not. This is due to their suffering from both the vulnerabilities and disadvantages of the status of childhood and those associated with disability, gender, detention, non-citizenship, status as an indigenous person, mental illness, etc. For instance, it is more probable that children living with disabilities will suffer socio-economic rights violations than those living without—a fact that is due to the particular discrimination and exclusion experienced by such children—as well as the inextricable link between poverty and disability.78 It is arguable that children who suffer such multiple, multidimensional disadvantages are the victims both of multiple discrimination and of what Crenshaw has termed 73 David Weissbrodt states that ‘Non-citizens include refugees, asylum seekers, and immigrants who have entered a new country. There are also “non-immigrants” [who] include, for example foreign workers who have temporary permission to remain, foreign students, business visitors, tourists and unsuccessful asylum seekers as well as persons who have been subject to trafficking, or who otherwise lack the requisite documentation to remain’ (citations omitted) (D Weissbrodt, The Human Rights of Non-citizens (New York, Oxford University Press, 2008) 2. 74 Non-citizens are not always disenfranchised. For international examples of non-citizens being permitted to vote in local and national elections, see Immigrant Voting Project, ‘Noncitizen Voting Around the World’, available at www.immigrantvoting.org/material/ world.html. 75 For more on the representation of children by other, enfranchised members of society, see Chapter 2. 76 For further consideration of the respective situations of children and non-citizens, see Chapter 3. 77 See, eg the immigrant and non-citizen lobby groups in the United States that campaign on immigration reform. 78 See Inoccenti Research Centre, Promoting the Rights of Children with Disabilities (Florence, UNICEF, 2007) Editorial and ch 5.

A Question of Definition and the Challenge of ‘Nature’ 21 ‘intersectional’ discrimination.79 Indeed, violations of the child’s socioeconomic rights are often the result of deeply-rooted systemic inequality.80 Furthermore, children whose socio-economic rights have been violated may become victims of discrimination on that ground also (for instance, due to stigmatic attitudes about street children or persons living with mental illness or HIV/AIDS). SOCIO-ECONOMIC RIGHTS: A QUESTION OF DEFINITION AND THE CHALLENGE OF ‘NATURE’

Having discussed one key focus of this work—children—it is necessary to address the second: socio-economic rights. By socio-economic rights, I mean those rights that deal with minimum conditions for welfare and wellbeing.81 For my purposes, ‘socio-economic rights’ include health rights, the rights to housing, food, water, education and an adequate standard of living, as well as social security rights and the right to work. There is increasing academic and legal support for the view that socioeconomic rights (including those of children) impose obligations on nonstate actors of both an enforceable and non-enforceable nature. Indeed, some of the constitutional frameworks considered in this work make provision for the direct and/or indirect horizontal application of children’s socio-economic rights against non-state actors.82 The analysis in this work, however, will focus only on the judicial enforcement of socio-economic rights against the state. While socio-economic rights are frequently provided for at the domestic level in legislation or as part of the common law, the primary focus of this work is socio-economic protections that are either (a) explicitly set out in

79 See K Crenshaw, ‘Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of Chicago Legal Forum 139. Crenshaw does not deal with the position of children specifically but her argumentation applies to a range of groups suffering multidimensional discrimination. 80 See, eg Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) (TAC), in which only those HIV-infected mothers in a few designated pilot sites could receive anti-retroviral treatment to prevent mother-to-child transmission of the HIV/AIDS virus, while mothers in other public hospitals could not. Women and new-born infants using public hospitals were likely to be members of groups previously discriminated against under the apartheid regime and were disadvantaged by the persistent inequalities (for instance, on the grounds of race) in South African society. This case is discussed further in Chapters 4 and 6. 81 P Veerman, The Rights of the Child and the Changing Image of Childhood (Dordrecht, Martinus Nijhoff Publishers, 1992) 25. 82 See, eg Irish Constitution, art 42.1, which provides that parents are obliged ‘to provide, according to their means, for the religious and moral, intellectual physical and social education of their children’; see also South African Constitution, art 8, which makes provision for direct application of rights set out in the Bill of Rights, including, potentially, children’s socio-economic rights.

22 Children and Socio-economic Rights the constitution; (b) implied from the constitution; or (c) form part of the constitutional framework by means of the domestic incorporation of international socio-economic rights standards through affording constitutional rank to international human rights protections (thereby, in effect according them equal status or legitimacy to the constitutional text).83 The one exception is the rights at issue in the US state education cases, which are set out in, or derived from, state constitutions. For simplicity’s sake, all such rights will be referred to as ‘constitutional rights’. The key reason for my interest in constitutional socio-economic rights is that legislation, the common law and the rights provided thereunder are ultimately subordinate to the constitution.84 Judicial decisions involving such non-constitutional socio-economic rights may be relatively easily overruled or reversed by the enactment legislation. Therefore, they do not pose the same issues in relation to counter-majoritarianism and the separation of powers that judicial enforcement of constitutional socio-economic rights does. Before moving on to discuss the legal legitimacy and efficacy of the courts’ enforcement of children’s socio-economic rights, it is necessary to deal (very briefly) with some of the objections that have traditionally been posed to the courts becoming involved in the adjudication of socio-economic rights generally. Chapters 3 and 4 will address the objections allegedly posed by the separation of powers doctrine and the counter-majoritarian objection, while concerns about the institutional capacity of the courts to enforce children’s rights will be outlined and countered in Chapter 5. This section, however, addresses objections to judicial enforcement of socio-economic rights based on the characteristics that commentators opposed to such activity have associated with those rights.85 Alston and Quinn point out that these ‘characterisations’ of socioeconomic rights are generally put forward in the context of comparisons between civil and political rights, on the one hand, and economic, social and cultural rights, on the other.86 The essence of such claims is that the

83 This is a feature of numerous Latin American constitutions in particular. See, eg Colombian Constitution, art 44, which provides that ‘[children] will also enjoy other rights upheld in the Constitution, the laws, and international treaties ratified by Colombia’. For a discussion of the different ways in which international human rights instruments form part of the constitutional frameworks of (Latin American) civil law jurisdictions, see E García Méndez, ‘A Comparative Study of the Impact of the Convention on the Rights of the Child: Law Reform in Selected Civil Law Countries’ in UNICEF (ed), Protecting the World’s Children (New York, Cambridge University Press, 2007) 100, 117–19. 84 The US state constitutions are subordinate to the Federal Constitution and federal law in terms of art 6, clause 2 of that instrument. 85 Elements of this part of the chapter have previously appeared in an abbreviated form in A Nolan, M Langford and Bruce Porter, The Justiciability of Social and Economic Rights: An Updated Appraisal, NYU Centre for Human Rights and Global Justice Working Paper Series, No 15 of 2007. 86 P Alston and G Quinn, ‘The Nature and Scope of State Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 156, 159.

A Question of Definition and the Challenge of ‘Nature’ 23 nature of socio-economic rights renders them an inappropriate subject for judicial review. The rebuttals set out below demonstrate that the presumptions are based on an incorrect view of the nature of both socio-economic and civil and political rights. These ‘objections’ to socio-economic rights enforcement, as well as related arguments concerning the alleged institutional capacity of the courts, are founded less on a ‘true’ understanding of the nature of socio-economic rights than on opposition to such rights due to the implications that effective implementation of them will have for current resource and power distributions. One misguided view of socio-economic rights, which underpins the hostility of many of those who object to the constitutionalisation and the judicial enforcement of socio-economic rights, is that, in contrast to civil and political rights, such rights are inherently ‘ideological’ in terms of necessitating ‘an unacceptable degree of intervention in the domestic affairs of states and to be inherently incompatible with a free market economy’.87 The association of socio-economic rights with socialist or communist ideology was at least partially attributable to the historical and political context of the drafting of the International Covenant on Economic, Social and Cultural Rights (ICESCR). During negotiations, the Soviet and Latin American delegations expressed support for the inclusion and prioritisation of socioeconomic rights in the International Bill of Rights. This has traditionally been regarded as having taken place in the face of Western opposition to the inclusion of socio-economic rights, resulting in the ultimate adoption of two separate Covenants.88 Most notably, the growing inclusion of justiciable socio-economic rights in the constitutions of states with a variety of different economic systems, together with the widespread ratification of the ICESCR and other international instruments providing for such rights by countries working on the basis of a free market economic model, have effectively rendered claims about the ideological nature of socio-economic rights moot. Notably, the UN Committee on Economic, Social and Cultural Rights (ComESCR) has stated that the Covenant is neutral in terms of political and economic systems and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of, a socialist or a capitalist system, or a mixed, centrally planned or laissez-faire economy, or upon any other particular approach.89 Furthermore, all rights may be ideological in nature when considered in terms of their practical application and implementation. The right to life 87

Alston and Quinn, above n 86, 160. For a contrasting view, see D Whelan and J Donnelly, ‘The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight’ (2007) 29(4) Human Rights Quarterly 908. Even Whelan and Donnelly, however, agree that the West was resistant to socio-economic rights giving rise to justiciable claims subject to quasi-judicial international monitoring. 89 ComESCR, General Comment No 3 on the Nature of States Parties’ Obligations, UN Doc E/1991/23 (1990) para 8. 88

24 Children and Socio-economic Rights (a classic ‘civil and political’ right) has been employed by numerous groups forwarding different ideological agendas in relation to divisive issues such as abortion and euthanasia. Indeed, it is arguable that the right to take part in the conduct of public affairs of one’s country directly or through freely chosen representatives, and the right to vote, are as ‘inherently’ ideological as any ‘socialist’ socio-economic right, founded as they are on the presumption that liberal democracy based on universal suffrage is the optimum form of government. The right to property has been employed to pursue a range of ideological purposes, ranging from the pursuit of indigenous people’s rights to the facilitation of a liberal model of economic exchange.90 A childspecific ‘ideological’ example of civil and political rights is the employment of the right to freedom from torture and inhuman and degrading treatment to combat the practice of female genital mutilation. Flawed presumptions about socio-economic rights and their civil and political counterparts include (i) the negative/positive nature of such rights in terms of the duties they impose on states; (ii) the notion that socio-economic rights may not be practicable where resources are scarce, while civil and political rights are cost-free and therefore always practicable or realisable; and (iii) the belief that the obligations imposed by socio-economic rights are too vague and indeterminate to be enforceable or justiciable—in contrast to the more precise civil and political rights. I will only discuss these arguments briefly as they have been (in my view) effectively repudiated by numerous commentators. In practice, debate has now largely moved beyond whether socio-economic rights are justiciable in principle to more nuanced judgments and discussions over the appropriate principles and boundaries to be applied in practice.91 This has been demonstrated in the domestic jurisprudence of numerous jurisdictions, as well as in the discussions that surrounded the formulation and adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.92 It is, however, necessary to refer to these allegations about the ‘nature’ 90 For the former use, see, eg Arts 11 and 31 of the United Nations Declaration on the Rights of Indigenous Peoples, adopted by General Assembly Resolution 61/295, 13 September 2007. For the latter, see, eg the use of the right to property under the ECHR by companies in M Emberland, The Human Rights of Companies: Exploring the Structure of ECHR Provisions (Oxford, Oxford University Press, 2006). 91 M Langford, ‘Background Assessment and Strategy Paper’, presented at the ESCR-Net International Strategy Conference, Nairobi, Kenya, 1–4 December 2008, 1. For general discussions of the key issues arising in relation to the justiciability of socio-economic rights, as well as an account of comparative case law, see Nolan et al, above n 85 and C Courtis, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (Geneva, ICJ, 2008). 92 For a synopsis of this process see C Mahon, ‘Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2008) 8(4) Human Rights Law Review 617. See also the session reports of the Open-ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, available at www2.ohchr.org/english/issues/escr/intro.htm.

A Question of Definition and the Challenge of ‘Nature’ 25 of socio-economic rights, even if only to refute them, as they continue to influence judicial perceptions of, and approaches to, socio-economic rights, including those of children. The traditional identification of civil and political rights as negative (and therefore ‘true’ rights) on the one hand, and social and economic rights as positive (and therefore not true rights) on the other, is based on the classical liberal conception of rights as ‘freedom rights’; that is, the view that rights operate to protect autonomous individuals from the interference of others and the state, and that they are correlated with exclusively negative duties.93 According to this conception of rights, the state is merely required to refrain from interfering in the sphere of individual rights and freedoms and is obliged to provide a framework within which the individual can enjoy maximum freedom from state action.94 The state is under no legal obligation to take positive action in support of individuals regarding their social and economic situation. This liberal conception of ‘rights-holders’ as rational and autonomous, and of rights as negative freedoms, poses a particular problem when it comes to considering children’s socio-economic rights. First, the incapacity and lack of autonomy on the part of children (or at least some children) seems to preclude them from qualifying as rights-bearers, resulting in their being perceived as ‘becomings’, rather than ‘beings’ under liberal theory.95 In addition, the notion of rights as imposing exclusively negative obligations significantly reduces their usefulness as tools to address many of the socio-economic rights violations suffered by children. This is due to such violations being caused by inaction, rather than action, on the part of state.96 The idea of socio-economic rights (or, indeed, moral welfare rights)97 as objectionable on the basis that ‘true’ rights only impose negative obligations

93 In ch 1 of On Liberty, John Stuart Mill described rights as immunities from governmental interference (see JS Mill, On Liberty, G Himmelfarb (ed) (London, Penguin Books, 1974) 6. Libertarians such as Robert Nozick and other thinkers of the ‘New Right’ are contemporary adherents to this notion of rights as exclusively negative freedoms. 94 B De Villiers, ‘Social and Economic Rights’ in D Van Wyk et al (eds), Rights and Constitutionalism: The New South African Legal Order (Oxford, Clarendon Press, 1996) 599, 602. For a critique of the liberal notion of autonomy and a proposal of a more substantive form of autonomy, see S Woolman and D Davis, ‘The Last Laugh: Du Plessis v De Klerk, Classical Liberalism and the Applications of Fundamental Rights under the Interim and Final Constitutions’ (1996) 12 South African Journal on Human Rights 36. 95 For more on liberal theory’s approach to children, see B Arneil, ‘Becoming Versus Being: A Critical Analysis of the Child in Liberal Theory’ in D Archard and C Macleod (eds), The Moral and Political Status of Children (Oxford, Oxford University Press, 2002) 70, 71–75. 96 For a discussion of state action and inaction, see Chapter 4. 97 It should be noted that here I am using the terms ‘welfare rights’ and ‘socio-economic rights’ as synonymous. The socio-economic rights under consideration in this book are ‘legal’ rights, while ‘welfare rights’ is a terminology generally employed in the discussion of ‘moral’ rights. However, the arguments dealt with in this section apply whether the rights are

26 Children and Socio-economic Rights has been challenged most effectively by showing that the claim that ‘classical’ civil and political rights give rise to exclusively negative duties and do not require action on the part of the government is flawed.98 This has been demonstrated by commentators both in the context of legal socio-economic rights and in discussions of moral welfare rights.99 All human rights, including those of children, require a combination of negative and positive conduct from states and varying levels of resources.100 For example, a child’s right to bodily integrity is unlikely to be realised unless the state takes steps to provide an effective police force. Furthermore, it is clear that socioeconomic rights do not merely impose positive obligations. Where a child

expressed as moral rights or legal rights. For more on the relationship between moral welfare rights and socio-economic rights, see Chapter 3 n 53. 98 For a useful discussion of how non-socio-economic/non-welfare rights require governmental action, see S Holmes and C Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (New York, WW Norton and Co, 1999). For a discussion of how the negative/positive distinction does not operate in relation to political rights, see J Waldron, ‘Participation: The Right of Rights’ (1998) 98 Proceedings of the Aristotelian Society 307, 308–11. 99 Commentators who have dealt with this issue in the context of legal socio-economic rights include G Van Hoof, ‘The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views’ in P Alston and K Tomasevski (eds), The Right to Food (Dordrecht, Martinus Nijhoff Publishers, 1984); M Scheinin, ‘Economic and Social Rights as Legal Rights’ in A Eide et al (eds), Economic, Social and Cultural Rights: A Textbook, 2nd revised edn (The Hague, Kluwer Law International, 2001) 29. Those who have considered it in relation to moral rights or general theories of rights include W Sadurski, ‘Economic Rights and Basic Needs’ in C Sampford and D Galligan (eds), Law, Rights and the Welfare State (1986) 49, 54–58; R Plant, ‘Needs, Agency and Rights’ in C Sampford and D Galligan (eds), Law, Rights and the Welfare State (London, Croom Helm, 1986) 22 and H Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy (Princeton, NJ, Princeton University Press, 1980) ch 2. 100 S Liebenberg, ‘The International Covenant on Economic, Social and Cultural Rights and its Implications for South Africa’ (1995) 11 South African Journal on Human Rights 359, 362. Cecile Fabre has challenged the view of Shue and others that all rights impose both negative and positive duties. (For more on these claims, see C Fabre, Social Rights under the Constitution: Government and the Decent Life (Oxford, Oxford University Press, 2000). She argues that there are indeed some negative rights that only give rise to negative duties of non-interference and some positive rights that give rise solely to positive duties to help. Rejecting as inaccurate the traditional conflation of the difference between civil and political rights and socio-economic rights on the one hand, and the difference between negative and positive rights on the other, she argues that rights giving rise to solely positive or negative duties cannot be classified as either exclusively socio-economic or civil and political. She argues that Shue’s thesis does not account for the conceptual possibility of talking of more specific rights into which general rights can be broken down, and removes the possibility of describing certain demands as being protected by rights as opposed to merely duties on the part of others (ibid 43–53). Fabre has a point. However, legal rights are normally phrased quite generally for practical reasons. Enshrining every demand in the form of a right would be impracticable in a constitution or legislation due to length issues. Thus, I think it is perhaps more useful to regard such generally-phrased rights as imposing multiple duties to meet different demands which fall within that general right. This way, each demand is protected by the right, although the duty imposed by the right may vary in relation to the demand that is being asserted.

A Question of Definition and the Challenge of ‘Nature’ 27 enjoys a socio-economic right, the state is prohibited from acting in a way that would interfere with or impair the individual’s enjoyment of that right. For example, the introduction of school fees by the state resulting in some children no longer being able to attend school will constitute a violation of the right to education of those children. The combination of duties imposed by rights has been expressly recognised in the statements of the international treaty-monitoring bodies (particularly the ComESCR), the case law of regional tribunals,101 and in national constitutional jurisprudence, where domestic courts have imposed positive duties on the state on the basis of children’s civil and political rights, and children’s socio-economic rights have been held to give rise to negative ones. The different layers of obligations are commonly expressed as a tripartite typology of obligations: the obligations to respect, protect and fulfil.102 The obligation to respect is generally negative, the obligations to protect and fulfil positive. The obligation to respect requires states to refrain from interfering with the enjoyment of socio-economic and cultural rights.103 The duty to respect is described as ‘generally’ (as opposed to ‘completely’) negative because state efforts to meet this obligation may involve positive action on the part of the state or its agents, such as amendment, preparation or passing of legislation, reform of institutional practices, the introduction of sanctions to secure compliance with forbearance and abstinence from action, and the budgeting of necessary funds. The obligation to protect requires states to take measures that prevent third parties from interfering with the enjoyment of such rights. The obligation to fulfil incorporates the duties to promote, facilitate and provide, and will involve states taking steps to facilitate individuals and communities in enjoying the right. When, for reasons beyond their control, an individual or group is unable to realise the right themselves by the means at their disposal, the duty to fulfil will entail the state providing that specific right.104 Where relevant, this typology (the one most commonly used by international treatymonitoring bodies in analysing the obligations imposed by socio-economic

101 See generally A Nolan, ‘Addressing Economic and Social Rights Violations by Nonstate Actors through the Role of the State: A Comparison of Regional Approaches to the “Obligation to Protect”’ (2009) 9(2) Human Rights Law Review 225. 102 The evolution of the tripartite typology is well-rehearsed and will not be considered further here. For more on the evolution of, and variations on, this typology, see Nolan, above n 101; I Koch, ‘Dichotomies, Trichotomies or Waves of Duties?’ (2005) 5 Human Rights Law Review 81, 84–87; and M Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford, Oxford University Press, 1995) 109–14. 103 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22–26 January 1997, published in (1998) 20 Human Rights Quarterly 691 para 6. 104 Paraphrased from ComESCR, General Comment No 13 on the Right to Education (art 13), UN Doc E/C.12/1999/10 (1999) para 47.

28 Children and Socio-economic Rights rights)105 will be employed in this book when analysing the different obligations imposed by the socio-economic rights at issue.106 Thus, while socio-economic rights require relatively greater state action for their realisation than do civil and political rights, this difference separates the two sets of rights more in terms of degree than kind.107 Both kinds of rights engender positive and negative obligations on the state; both involve a combination of state action and state abstention. Another frequently-made objection to the courts dealing with socioeconomic rights is that socio-economic rights differ from civil and political rights on the grounds that the former require the use of resources by the state, while the latter do not. On this account, as civil and political rights are resource-independent, they are always immediately practicable or realisable.108 In contrast, socio-economic rights are said to be inevitably resource dependent and, therefore, cannot be satisfied where there is a scarcity of resources. This has led some commentators to describe socio-economic rights as ‘relative’, in contrast to ‘absolute’ civil and political rights.109 Yet, the claim that one set of rights is costless while the other always involves the expenditure of resources is unsustainable. Whether or not a right is cost-free will depend on the obligation in question, rather than the classification of the right imposing that obligation as either civil and political or socio-economic in nature. The provision and maintenance of the infrastructure crucial to the realisation of children’s civil and political rights, such as the right to a fair trial, will not be costless. Sunstein observes that even the classic individual liberal right to private property cannot exist without a governmental apparatus, ready and able to secure people’s holding

105 For examples of the Committee on Economic, Social and Cultural Rights using the typology in analysing the obligations imposed by socio-economic rights, see ComESCR, ibid para 46; ComESCR, General Comment No 15 on the Right to Water (arts 11 and 12), UN Doc E/C.12/2002/11 (2003) para 20; ComESCR, General Comment No 14 on the Right to the Highest Attainable Standard of Health (art 12), UN Doc E/C.12/2000/4 (2000) para 33; and ComESCR, General Comment No 12 on the Right to Adequate Food (art 11), UN Doc E/C.12/1999/5 (1999) para 15. For the Committee on the Rights of the Child’s use of this tripartite typology of obligations, see ComRC, General Comment No 4 on Adolescent Health and Development in the Context of the Convention on the Rights of the Child, UN Doc CRC/GC/2003/4 (2003) para 3. This framework may also be employed in relation to civil and political rights. For a review of the key literature in this area, see A Rosga and M Satterthwaite, The Trust in Indicators: Measuring Human Rights, New York University Public Law and Legal Theory Working Paper 20/2008, n 43. 106 For more on what these different obligations entail, see the ComESCR General Comments mentioned above and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, above n 103. 107 Alston and Quinn, above n 86, 183–84. 108 See C Fried, Right and Wrong (Cambridge, MA, Harvard University Press, 1978) 110. 109 See, eg M Bossuyt, L’interdiction de la discrimination dans le droit international des droits de l’homme (Brussels, Etablissements Emile Buylant, 1976) 186–87.

A Question of Definition and the Challenge of ‘Nature’ 29 as such.110 On the other hand, the state’s duty to respect socio-economic rights may cost nothing at all. The claim that civil and political rights do not entail expenditure is arguably at least partially rooted in the fact that the societal structures necessary to ensure such rights are already in place in developed countries, rather than on whether or not such societal structures required resource allocation and expenditure in the first place. Providing the legal, policy, administrative and physical infrastructure necessary to give effect to the child’s right to freedom of bodily integrity from the ground up will certainly not be costless. Leaving aside the ‘cost’ issue for a moment, it should be noted that constitutional rights are binding on all branches of government and should necessarily be taken into account by the legislature and the executive when it comes to determining budgetary allocations and expenditures. As such, all constitutional rights can be said to have ‘budgetary’ implications’ in the sense that where such rights exist, budgetary decisions should not contravene them. The belief that socio-economic rights inevitably require resources has led to doubts about their potential to be fully realised. Sadurski points out that, even where a right cannot be realised in a particular society at a given time due to a shortage of resources, this does not necessarily mean that such a right fails to meet the conditions of rights sensu stricto.111 Thus, even if one accepts that socio-economic rights are not, in fact, realisable in a specific society at a given time, this does not mean that they are merely aspirational goals. Not all civil and political rights are immediately realisable in all societies, yet their status as rights generally goes unquestioned. This is due to the greater societal and political acceptance or perception of the ‘fundamental’ status of these rights, rather than resulting from their nature as such. Indeed, pointing to existing distributions to justify the ‘reality’ of rights is highly dubious. While neither category of right either is always cost-free or unfailingly requires the expenditure of resources, states’ efforts to vindicate socioeconomic rights are often more likely to entail the expenditure of resources than efforts to assure civil and political rights. This is due to the more 110 C Sunstein, Social and Economic Rights? Lessons from South Africa, Public Law and Legal Theory Working Paper No 12 (2001) 2. See also C Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (Cambridge, MA, Basic Books, 2004) 198–99. For more on ‘resource-dependent’ non-socio-economic or non-welfare rights, see ibid at 199–200; FL Michelman, ‘The Constitution, Social Rights and Liberal Political Justification’ (2002) 1 International Journal of Constitutional Law 13; Holmes and Sunstein, above n 98, 35–83, 114–17; M Tushnet, ‘Civil Rights and Social Rights: The Future of the Reconstruction Amendments’ (1992) 25 Loyola of Los Angeles Law Review 1207, esp 1214. 111 Sadurski, above n 99, 63. For a contrasting view, see M Cranston, What are Human Rights? (New York, Taplinger Publish Co, 1973) 66–7, who argues that ‘where it is impossible for a thing to be done, it is absurd to claim it as a right’ (at 66).

30 Children and Socio-economic Rights directly resource-dependent nature of socio-economic rights, as well as the fact that the mechanisms necessary to ensure civil and political rights are more likely to already be in place. Therefore, like the assertion about the alleged negative/positive dichotomy, this difference between socio-economic rights and civil and political rights is also one of degree, rather than of nature. The final claim frequently proffered about socio-economic rights is that they are ‘vague’, ‘unenforceable’ and ‘non-justiciable’. It is alleged that this contrasts with ‘precise’, ‘enforceable’ and ‘justiciable’ civil and political rights. The different attitudes of domestic and regional courts to the justiciability of socio-economic rights (and other kinds of rights), as well as the diverse treatment of such rights under different legal systems, make it clear that it is incorrect to regard ‘justiciability or ‘non-justiciability’ as inherent to particular rights. In Scott and Macklem’s words, justiciability is a contingent and fluid notion dependent on various assumptions concerning the role of the judiciary in a given place at a particular time, as well as on its changing character and evolving capability.112 The claim that socio-economic rights are inherently so indeterminate as to be non-justiciable and incapable of enforcement by the courts is belied by the growing body of jurisprudence relating to such rights at the international, regional and national levels. Socio-economic rights have been litigated directly and indirectly before regional bodies,113 including the African Commission on Human Rights,114 the Inter-American regional human rights bodies,115 the European Committee of Social Rights116 and the European Court of Human Rights.117 Furthermore, domestic courts in numerous jurisdictions have accepted that certain socio-economic rights are

112 C Scott and P Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141 University of Pennsylvania Law Review 1, 17. 113 For summaries of many of the key cases brought before these bodies, see A Nolan et al, Leading Cases on Economic, Social and Cultural Rights: Summaries (Geneva, Centre on Housing Rights and Evictions, 2009). 114 See, eg D Chirwa, ‘The African Regional System: The Promise of Recent Jurisprudence on Social Rights’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008) 327. 115 See, eg M Tinta, ‘Justiciability of Economic, Social, and Cultural Rights in the InterAmerican System of Protection of Human Rights: Beyond Traditional Paradigms and Notions’ (2007) 29 Human Rights Quarterly 431. 116 See, eg U Khaliq and R Churchill, ‘The European Committee of Social Rights’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008) 428. 117 For more, see E Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act (Oxford, Hart Publishing, 2007) 49; E Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’ in D Barak-Erez and A Gross (eds), Exploring Social Rights: Between Theory and Practice (Oxford, Hart Publishing, 2007) 135.

A Question of Definition and the Challenge of ‘Nature’ 31 justiciable and enforceable by the courts.118 In light of this jurisprudence, it cannot be said that socio-economic rights are, by their very nature, incapable of being the subject of judicial determination or enforcement. Liebenberg has pointed out that: it is through recourse to the conventions of constitutional interpretation and their application to the facts of different cases that the specific content and scope of a right emerges with greater clarity … The fact that the content of many socio-economic rights is less well-defined than civil and political rights is more a reflection of their exclusion from processes of adjudication than of their inherent nature.119

Indeed, as courts become more willing to adjudicate socio-economic rights issues, a more precise sense of both the substantive content and the qualification on those rights has emerged. This has been accompanied by detailed analyses of specific rights in the form of interpretive statements by UN treaty-monitoring bodies (General Comments/Recommendations) and the development of analytical frameworks by international human rights bodies (such as the tripartite typology of respect, protect and fulfil, discussed above) which operate to render the substantive content of socio-economic rights, and the duties imposed by them, more precise. In addition, the claim that socio-economic rights are phrased so vaguely as to render them non-justiciable ignores the fact, first, that often civil and political rights, such as the rights to ‘freedom of speech’, ‘human dignity’ and ‘privacy’, are also often expressed in a vague, open-textured way and are far from self-defining. This is consistent with the desirability that human and constitutional rights should be capable of general application to a variety of individual circumstances and different contexts over time.120 Secondly, some socio-economic rights and the duties imposed by them are precisely phrased. One example of this is Article 24 CRC, which specifies the duties imposed by that right in considerable detail. Amongst other things, the provision refers to the obligation of states to take measures ‘[t]o develop preventive health care, guidance for parents and family planning education and services’ and to ‘diminish infant and child mortality’. Another constitutional example of a detailed socio-economic right is article 196 of the Brazilian Constitution, which states that: [h]ealth is the right of all persons and the duty of the State and is guaranteed by means of social and economic policies aimed at reducing the risk of illness and

118 For discussions of jurisdictions in which socio-economic rights have been deemed judicially enforceable, see Langford, above n 114; F Coomans (ed), Justiciability of Economic and Social Rights: Experiences from Domestic Systems (Antwerpen/Oxford, Intersentia, 2006); R Gargarella et al (eds), Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Aldershot, Ashgate, 2006). 119 S Liebenberg, ‘Socio-Economic Rights’ in M Chaskalson et al (eds), Constitutional Law of South Africa (Cape Town, Juta, 1996) paras 41–1, 41–11. 120 Nolan et al, above n 85, 14.

32 Children and Socio-economic Rights other hazards and at universal and equal access to all actions and services for the promotion, protection and recovery of health.

This provision forms part of a detailed section on ‘Health’ which prescribes duties and other elements of the healthcare system in considerable detail.121 It is arguable that the question of whether a right is capable of judicial enforcement is not linked to the classification of that right as civil or political or socio-economic. Rather, it is dependent on the particular obligation imposed by that right which is at issue. For example, it is relatively easy for a court to determine that the state has failed to meet its obligation to respect and protect rights, as such activity fits in easily with the traditional judicial review function of evaluating state action against constitutional standards. However, the tertiary duty to ‘fulfil’ (ie to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realisation of such rights)122 is arguably a less appropriate subject of judicial review, requiring, as it does, not just a consideration of state action but also of state inaction. This assertion will be dealt with further in Chapter 4 in the context of discussions of the separation of powers. At this point, it is sufficient to note that courts worldwide are gradually becoming more willing to take on the task of evaluating whether both state inaction and action amount to a violation of constitutional rights and obligations. Thus, the claim that the obligations imposed by socio-economic rights are always too vague and indeterminate to be enforceable or justiciable does not stand up to scrutiny. CHILDREN’S SOCIO-ECONOMIC RIGHTS; THE ROLE OF INTERNATIONAL LAW

The socio-economic rights in many of the cases referred to in this book are expressed differently from those set out under international law. However, where relevant, they will be considered in light of international treaty provisions and the statements and rulings of international judicial and quasi-judicial bodies, such as the ComESCR and the UN Committee on the Rights of the Child (ComRC). Children’s socio-economic rights have been enshrined in numerous international human rights instruments,123 most 121

Constitution of Brazil, Title VIII, ch II, s II. See para 6 of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, above n 103. 123 International instruments providing for children’s socio-economic rights include the Convention on the Rights of Migrant Workers and Their Family Members, the Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of All Forms of Discrimination Against Women and the Universal Declaration of Human Rights. 122

Children’s Socio-economic Rights; The Role of International Law 33 notably in the CRC and ICESCR.124 Such rights have also been provided for under regional human rights systems, including those of the African Union, the Council of Europe and the Organisation of American States.125 It is important to consider children’s constitutional socio-economic rights in light of international law for a number of reasons. First, until recently, there was very little socio-economic rights case law at a national level in any jurisdiction.126 Looking at how international bodies have dealt with international standards in this area provides a sense of the different approaches that might be adopted in relation to the interpretation and application of socio-economic rights by domestic courts. This is particularly true in jurisdictions such as the United States and Ireland, where the courts have generally been reluctant to engage with constitutional socio-economic rights, resulting in a lack of a proper analytical framework for such rights. In addition, some of the jurisprudence referred to in this work comes from jurisdictions such as Colombia and Argentina in which international human rights law instruments form part of the constitutional hierarchy and have priority over domestic laws.127 Thus, the approach adopted by international adjudicative and treaty-monitoring bodies to such international human rights standards will play a key role in fashioning the approach of domestic courts directly applying those standards. Other constitutional socio-economic rights have clearly been directly influenced by international law in their formulation. For instance, the socio-economic rights provisions of the South African Constitution (CRSA) are closely based on those enshrined in international human rights treaties and were specifically chosen because of their general acceptance in international human rights instruments and national constitutions.128

124 While the rights contained in the ICESCR apply to everyone, not just children, it does contain child-specific provisions. See Arts 10(3), 22(a) and 13. 125 For a full list of children’s socio-economic rights set out in regional human rights treaties, see M Langford and A Nolan, Litigating Economic, Social and Cultural Rights: Legal Practitioners’ Dossier (Geneva, COHRE, 2006), ch 7. 126 By this statement, I mean case law involving socio-economic rights specifically, as opposed to jurisprudence which forwarded socio-economic rights indirectly through the adjudication and application of civil and political rights. 127 See Colombian Constitution, art 93 and Argentinean Constitution, s 75(22). 128 P De Vos, ‘Pious Wishes or Directly Enforceable Human Rights? Social and Economic Rights in South Africa’s 1996 Constitution’ (1997) 1 South African Journal on Human Rights 67, 73. For a list of international instruments from which the child-specific rights provisions of the Interim (and, ultimately, the Final) Constitution were derived, see A. Pantazis and T Mosizkatsana, ‘Children’s Rights’ in M Chaskalson et al (eds), Constitutional Law of South Africa (Cape Town, Juta, 1996) para 33-1. For more on the role played by international standards and particularly the CRC in the formulation of the children’s rights provisions of South Africa’s Interim Constitution of 1993, see M Chaskalson and R Spitz, The Politics of Transition: A Hidden History of South Africa’s Negotiated Settlement (Oxford, Hart Publishing, 2000) 364–66 (focussing on the Interim Constitution); H Corder and L Du Plessis, Understanding South Africa’s Transitional Bill of Rights (Cape Town, Juta, 1994) 186. On the role of

34 Children and Socio-economic Rights Thirdly, international law imposes obligations on states in relation to children’s socio-economic rights. All the jurisdictions referred to in this monograph, except the United States, have signed and ratified the CRC. Only South Africa and the United States have not ratified the ICESCR, although both have signed that instrument. All of those countries that have ratified the CRC and ICESCR are obliged to give effect to the relevant socio-economic rights obligations. Under Article 18 of the Vienna Convention on the Law of Treaties 1969,129 South Africa and the United States are required to avoid retrogression in any of the areas covered by the ICESCR.130 Finally, international law may have implications for the treatment of children’s constitutional socio-economic rights by national courts. The South African Constitution provides that any international agreement becomes law in the Republic when it is enacted into law by national legislation.131 However, in the event of Parliament not providing for the incorporation of an international treaty into domestic law upon ratification (as has been the case with the ICESCR), the courts will nonetheless be presented with an opportunity to invoke that treaty to interpret ambiguous statutes.132 With regard to constitutional interpretation, section 39(1) CRSA states that when interpreting the Bill of Rights, a court, tribunal or forum must, amongst other things, consider international law and may consider foreign law. The Constitutional Court made it clear in S v Makwanyane that international law in this context is to include non-binding as well as binding law.133 The Constitutional Court has referred to international law in all

international instruments in the formulation of the non-child-specific socio-economic rights provisions under the CRSA, see Liebenberg, above n 119, para 41-4. 129 Vienna Convention on the Law of Treaties, Art 18, states that even where a state party has merely signed a treaty, upon doing so it undertakes to ‘refrain from acts which would defeat the object and purpose of a treaty’. 130 For more on South Africa’s obligations upon having signed the ICESCR, see Liebenberg, above n 100, 371–72. 131 CRSA s 231(4). The exception to this rule is a ‘self-executing’ provision of an agreement that has been approved by Parliament, which becomes law in South Africa unless it is inconsistent with the CRSA or an Act of Parliament (CRSA s 231(4)). For more on ‘selfexecuting provisions’ of the International Covenant on Economic, Social and Cultural Rights, see ComESCR, General Comment No 3, para 5, above n 89. In addition, customary international law is law in South Africa unless it is inconsistent with the Constitution or an Act of Parliament (CRSA s 232). Thus, those aspects of international treaties such as the CRC and ICESCR that may be regarded as forming part of customary international law also form part of South African law, regardless of whether or not they have been expressly incorporated into municipal law. 132 Liebenberg, above n 100, 372. CRSA s 233 states that: ‘When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law’. 133 S v Makwanyane 1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC), para 35. The Makwanyane case actually involved s 35(1) of the Interim Constitution but the Constitutional

Children’s Socio-economic Rights; The Role of International Law 35 the cases that have come before it in relation to children’s socio-economic rights. That said, the Constitutional Court has also occasionally been quite selective in terms of what it is willing to adopt from international law, stating that ‘[t]he relevant international law can be a guide to interpretation but the weight to be attached to any particular principle or rule of international law will vary’.134 Even in those jurisdictions such as Ireland, in which there is no such obligation to have regard to international law and where international law is not binding in the absence of domestic incorporation, international agreements may have a persuasive value. There have been numerous instances of courts using such instruments, including the CRC, as an aid to the interpretation of national rules.135 The US Supreme Court, a body that is not celebrated for its receptivity to international and comparative law standards, has referred to the CRC as providing ‘respected and significant confirmation’

Court held in the Grootboom case that the comments made in relation to that provision also applied to s 39 of the Final Constitution (Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC) para 26; 2001 (1) SA 46 (CC)). 134 Per Yacoob J in Grootboom, para 63. An example of this is the Constitutional Court’s rejection in Grootboom, TAC, above n 80, and L Mazibuko and others v City of Johannesburg and others [2009] ZACC 28, of arguments based on the concept of the ‘minimum core’, reference to which is a recurring feature of the ComESCR’s jurisprudence. (See para 10 of General Comment No 3, above n 89, for an explanation of the concept of the minimum core.) For a criticism of the Constitutional Court’s approach to the minimum core, see D Bilchitz, ‘Giving Socio-economic Rights Teeth: The Minimum Core and Its Importance’ (2002) 119(3) South African Law Journal 383. For a defence of the Court’s approach, see M Kende, ‘The South African Constitutional Court’s Construction of Socioeconomic Rights: A Response to Critics’ (2004) 19 Connecticut Journal of International Law 617; and M Wesson, ‘Grootboom and Beyond: Reassessing the Socio-Economic Jurisprudence of the South African Constitutional Court’ (2004) 20(2) South African Journal on Human Rights 284. This ‘selective’ approach towards the jurisprudence of the ComESCR may prove problematic when South Africa ratifies the ICESCR, as the Constitutional Court’s jurisprudence with regard to the minimum core is not consistent with that of the ComESCR. There is debate as to the extent to which ratification would impact upon the Court’s approach to socio-economic rights. For a convincing explanation of why socio-economic rights should be interpreted so as to give rise to minimum core obligations, as well as suggestions as to the circumstances in which the state should be required to realise such core obligations, see D Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of SocioEconomic Rights (Oxford, Oxford University Press, 2007) ch 6. 135 Cases where the Irish courts have referred to the Convention on the Rights of the Child in their judgments to support their findings include O’Donoghue v Minister for Health [1996] 2 IR 20 (O’Hanlon J in the High Court referred to the rights of a mentally or physically disabled child under the CRC to a full and decent life, including education); Sinnott v Minister for Education, above n 19 (Hardiman J of the Supreme Court cited the definition of a ‘child’ set out in the CRC when dealing with the issue of the demarcation of a childhood); M(TM) v D(M) [1999] IESC 8 (where the Supreme Court, per Denham J, noted Art 12 CRC when discussing the right of the child to have her/his views taken into account in determining whether s/he should be returned to her/his mother under the Hague Convention on the Civil Aspects of International Child Abduction 1980).

36 Children and Socio-economic Rights for their own conclusions in the context of finding particular sentences for juvenile offenders to be unconstitutional cruel and unusual punishment in terms of the Eighth Amendment to the US Constitution.136 Many of the rights guaranteed under international and regional human rights treaties relating to civil and political rights also have socio-economic aspects or implications. For instance, in its General Comment No. 17 on the Rights of the Child, the UN Human Rights Committee stated, ‘that such measures [of protection as are required by the child’s status as a minor, on the part of his family, society and the state], although intended primarily to ensure that children fully enjoy the other rights enunciated in the Covenant, may also be economic, social and cultural’.137 The acknowledged interdependence and indivisibility of both sets of rights have led to elements of children’s socio-economic rights being protected by means of the application of these instruments.138 A key example is the jurisprudence of the Inter-American Court of Human Rights. Article 26 ACHR provides that: the States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realisation of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organisation of American States as amended by the Protocol of Buenos Aires.

However, the IACtHRhas thus far failed to engage properly with Article 26, preferring to base its decisions on other, civil and political rights set out in the Convention. According to Melish, rather than recognise the autonomous rights of individuals to health, education, or adequate housing under the ACHR, the IACtHRhas opted for a canopy approach. In doing so, it has subsumed these basic rights, all of which are necessary for the development of a dignified life, into a broadly understood concept of the ‘right to life’ and, more specifically, the ‘right to harbour a project of life’.139 In the celebrated ‘Street Children’ case, which centred on the abduction, 136 See, eg Roper v Simmons, 543 US 551 (2005); Graham v Florida, 560 US ____ (2010) (Slip Opinion). 137 Human Rights Committee, General Comment No 17 on the Rights of the Child (art 24), UN Doc HRI/GEN/1/Rev.7 (1989) para 3. 138 The interdependence, indivisibility and interrelationship of all human rights has been confirmed in, eg the Vienna Declaration and Programme of Action 1993, 12 July 1993, A/CONF.157/23 (Art 5) and the Proclamation of Teheran, 13 May 1968, A/CONF.32/41 (1968) 3 para 13. For a discussion of the concept of interdependence in the context of human rights, see C Scott, ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights’ (1989) Osgoode Hall Law Journal 769, 779–90. 139 T Melish, ‘The Inter-American Court of Human Rights: Beyond Progressivity’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, Cambridge University Press, 2008) 388.

Children’s Socio-economic Rights; The Role of International Law 37 torture and murder of street children by policemen, the Court emphasised that the right to life includes, not only the right of every human being not to be deprived of his life arbitrarily, but also the right that he will not be prevented from having access to the conditions that guarantee a dignified existence.140 According to the IACtHR, one of the obligations that the state must undertake as guarantor, to protect and ensure the right to life, is that of generating minimum living conditions that are compatible with the dignity of the human person.141 Minimum living conditions identified by the court in various cases include those relating to food, access to clean water and medical services.142 In addition, although the IACtHR cannot directly consider violations of the San Salvador Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights that are not based on trade union rights or the right to education,143 the Court has repeatedly turned to that instrument and the CRC in order to determine the content and scope of Article 19 ACHR. This provision states that ‘[e]very minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state’. With regard to the protection of the socio-economic rights of the child, the IACtHR has declared that: [t]hese provisions allow us to define the scope of the ‘measures of protection’ referred to in Article 19 of the American Convention, from different angles. Among them, we should emphasise those that refer to non-discrimination, special assistance for children deprived of their family environment, the guarantee of survival and development of the child, the right to an adequate standard of living and the social rehabilitation of all children who are abandoned and exploited. (emphasis added)144

In its decision in Juvenile Reeducation Institute v Paraguay,145 which focused on the conditions experienced by children in a detention centre, the Court reiterated the linkage between the right to life and other civil rights and the rights to health and education. In particular, it ruled that the obligation to provide children deprived of their liberty with special periodic healthcare and education programmes flowed from a proper interpretation of Article 4 ACHR, in combination with the pertinent provisions of the CRC and Article 13 of the San Salvador Protocol.146

140

‘Street Children’ case, above n 6, para 144. See, eg case of the ‘Juvenile Reeducation Institute’, above n 15, para 159. 142 See, eg Yakye Axa Indigenous Community v Paraguay, Judgment of 17 June 2005, InterAm Ct HR (Ser C) No 125 (2005). 143 San Salvador Protocol, Art 19(c). 144 ‘Street Children’ case, above n 6, para 196. 145 Case of the ‘Juvenile Reeducation Institute’, above n 15. 146 Ibid para 172. 141

38 Children and Socio-economic Rights Another reason to look beyond international and regional ‘socioeconomic rights treaties’ is that a number of human rights, including the rights to life, equality and property and trade union rights, do not conform with any supposed clear-cut categories of socio-economic rights and civil and political rights. This demonstrates the artificiality of the distinction that is frequently made between civil and political rights, on the one hand, and socio-economic rights, on the other. For instance, although the right to equality has traditionally been viewed as a civil and political right, it may also be regarded as socio-economic in nature, as rights to equality and nondiscrimination can be used either to defend or gain economic and social interests for individuals and groups of people.147 This further underlines the point that the jurisprudence of treaty-monitoring bodies under the ‘civil and political rights treaties’ may also be relevant to a discussion of the interpretation and substantive content of socio-economic rights. TURNING TO THE ‘LEAST POWERFUL BRANCH’: POINTS OF ENTRY AND THE SCOPE OF JUDICIAL ACTIVITY

This work makes the case that the courts can and should enforce the constitutional socio-economic rights of children where the elected branches of government have failed to do so. It is, therefore, necessary to consider the circumstances in which the courts may be called upon to give effect to such rights. Before doing so, however, two assumptions underlying this book’s consideration of the court’s intervention to secure children’s rights must be highlighted. The first assumption is that, in cases where the courts enforce children’s socio-economic rights, the legislature or executive defends a particular legal or policy measure (or the way in which it is being applied) on the basis of an interpretation or approach that differs from that ultimately adopted by the court(s) in the case. It is thus clear that, in the scenarios under consideration in this work, the courts are acting contrary to executive or legislative expectations or preference. Secondly, it is assumed that, in all of the scenarios addressed by the court, under the received conventions of legal interpretation and in the eyes of the reasonable observer, that body has the option to either uphold or invalidate a particular law or policy in the case in question. It is thus able to choose between the option which places it in a potentially conflictual relationship with the elected branches of government, or that which does not. That is not to suggest that the court’s decision is motivated by the aim of entering such a relationship—it is simply that this will be the outcome of the court’s decision. Reasonable people will often differ on whether or not the court 147 S Gutto, ‘Beyond Justiciability: Challenges of Implementing/Enforcing Socio-Economic Rights in South Africa’ (1998) 4 Buffalo Human Rights Law Review 79, 94–96.

Points of Entry and the Scope of Judicial Activity 39 should uphold or invalidate a law or policy in light of what the constitution provides, as there may be more than one reasonable interpretation of a particular provision. Therefore, this work does not consider those extreme cases where it is clear to any reasonable person that the court does not have any real choice when it comes to deciding the matter before it. An example of this might be where a constitutional provision states that, ‘all citizens over the age of 18 have the right to vote’ and the legislature passes a law restricting the right to vote to male citizens only. On any reasonable reading of the text of the constitution, the court must hold that the law is unconstitutional and hence invalid (although it may have a broad discretion when it comes to deciding how that invalidity should be remedied). These assumptions are important due to their implications for the respective stances of, and the relationship between, the courts and the elected branches of government in the context of litigation and adjudication involving the enforcement of children’s socio-economic rights. Let us turn to the points of entry of the courts. For simplicity’s sake, it is useful to conceptualise the situations in which the courts will be asked to intervene to secure children’s socio-economic rights in terms of incidences of: (1)

governmental interference with the enjoyment of children’s socioeconomic rights; that is, to borrow the language of the ComESCR, where the government has failed to respect such rights; (2) governmental failure to prevent interference by third parties with the enjoyment of children’s socio-economic rights; that is, where the government has failed to protect such rights; (3) government failure to take positive steps to facilitate, promote or provide children’s socio-economic rights; that is, where the government has failed to satisfy its obligation to fulfil such rights. These three incidences will result in the courts acting in numerous different ways in order to guarantee children’s socio-economic rights. That said, it is important to recognise that socio-economic rights violations are frequently complex and multifaceted. The reality is that the courts will often be required to address instances of socio-economic rights violations which involve more than one of the issues outlined above. For instance, interference by third parties such as paramilitaries with the enjoyment of children’s socio-economic rights will frequently be accompanied by interference on the part of government forces.148 Similarly, state evictions 148 See, eg Case 55/96 SERAC and CESR v Nigeria Comm No 155/96 (ACHPR) (2002); 10 IHRR 282 (2003) in 15th Annual Activity Report of the ACHPR (2002). Here, the African Commission on Human and People’s Rights found, amongst other things, that the destruction and contamination of the Ogoni people’s crops and housing by the government and non-state actor petroleum companies violated the implied rights to housing/shelter and food under the African Charter on Human and Peoples’ Rights. For an Inter-American example, see Massacres of Ituango v Colombia, Judgment of 1 July 2006, Inter-Am Ct HR (Ser C) 148 (2006), where, amongst other things, the IACtHR held the state expressly liable both for the direct collaboration of its agents in the acts constituting socio-economic

40 Children and Socio-economic Rights of slum-dwellers (and interference with the right to housing) may go hand-in-hand with state failure to fulfil the right to housing. Indeed, as Liebenberg highlights, ‘framing a claim in terms of a negative or a positive duty is contingent on the stage at which a legal challenge is brought, and how the issues are framed in the pleadings’.149 This must be borne in mind when considering the approaches of the courts discussed in this work. But what of the scope of judicial activity entailed by instances (1)–(3)? The role that the court is called upon to play in situation (1) is relatively uncontroversial as it primarily entails a review of state action. In such a situation, the court will be requested to call a halt to the interference in question: it will not generally be required to delineate or prescribe positive measures to be taken by the state in order to ensure the vindication of the rights in question. Situation (2) may require the courts to outline or direct positive steps to be taken by government to put an end to the interference caused by third parties. However, these steps are aimed at preventing interference with enjoyment of a right. Thus, as with situation (1), the courts’ actions can be viewed as being aimed at re-establishing the status quo. Such activity is likely to prove less controversial than that required by situation (3), which is aimed at altering the status quo and is very likely to entail an adjustment in prevailing distributions. The controversial nature of the courts dealing with situation (3) will be heightened where they set out steps that the state must take to fulfil its constitutional obligations in the form of a mandatory, rather than a declaratory, order or where courts grant structural interdicts.150 This work thus clearly envisages situations in which the courts adopt what Tushnet and others have described as ‘strong-form’ judicial review, according to which judicial interpretations of a constitution are final and unrevisable by ordinary legislative majorities.151 A mandatory (or positive) order requires an affirmative act or course of conduct where there is a duty under the law to perform such. The granting of a mandatory order by a court in response to a violation of constitutional rights by the state will oblige the relevant state officials or agents to perform their constitutional duties in the way specified by the court. Orders of this nature may entail the court exercising supervisory jurisdiction (ie in rights violations, and for the failure of its agents to prevent and remedy socio-economic violations committed by paramilitaries against the civilian population of Ituango. 149 S Liebenberg, Socio-Economic Rights: Adjudication under a Transformative Constitution (Cape Town, Juta, 2010) 56. 150 Liebenberg has described a ‘structural interdict’ as a ‘type of order involving ongoing supervision and the issuing of periodic directions by the Court regarding the processes of remedying a violation of constitutional rights’ (Liebenberg, above n 149, 424). 151 M Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton, NJ, Princeton University Press, 2008) 33. For more on strong-form review in the context of socio-economic rights, see R Dixon, ‘Creating Dialogue about Socioeconomic Rights: Strong-form Versus Weak-form Judicial Review Revisited’ (2007) 5 International Journal of Constitutional Law 391. For further discussion of ‘strong-form’ and other variants of judicial review, see Tushnet, ibid ch 2.

Points of Entry and the Scope of Judicial Activity 41 the case of structural interdicts). Declaratory orders outline what the state’s constitutional obligations are and may also declare what is required of the government in order to satisfy them.152 With such an order, the court makes clear the normative result that must be achieved, but does not specify the means to achieve it.153 While the government is bound to give effect to the obligations identified by the courts in declaratory orders in their lawand policy-making, where they fail to do so, the courts have no power to intervene to enforce the order in the absence of a plaintiff bringing another action seeking an injunction to prevent another act of disobedience. This is not the case with regard to mandatory orders, where the court retains jurisdiction over the matter if there is non-compliance with the order.154 Where such orders are not complied with, the court may find the state (or the relevant government agencies or officials) in contempt of court. My focus on the courts granting mandatory orders is due to the fact that, in practice, mandatory orders exert more control and impose greater restrictions on the discretion of the elected branches than declaratory orders do. This will be discussed further in Chapter 4. The close linkage between (1), (2) and (3) in particular instances means that the courts may have a certain degree of flexibility in terms of how they choose to consider or categorise the rights violation(s) and state conduct that comes before them. One example is the approach of the Argentine Supreme Court in Campodónico de Beviacqua, Ana Carina v Ministerio de Salud y Banco de Drogas Neoplácias.155 This decision centred on the right to health of a child who had been born with a serious disability in his marrow, which reduced his immunological defences. The medicine necessary for the child’s treatment was initially provided by the state. Later, however, the child’s mother was informed that state delivery would be interrupted, with the state claiming that it had only ever provided the medicine on ‘humanitarian’ grounds (rather than on the basis of a legal duty). The mother of the child brought an amparo action,156 seeking to prevent the interruption of delivery 152 For instance, in the South African Grootboom housing rights case, the Constitutional Court handed down a declaratory order setting out the duty of the state ‘to devise and implement within its available resources a comprehensive and coordinated programme progressively to realise the right of access to adequate housing’. Pillay points out that, although the order declared what was required by a constitutionally ‘reasonable’ programme, the declaratory nature of the order meant that it did not compel the state to take steps to ensure that its programme complied with the constitutional requirements (K Pillay, ‘Implementing Grootboom’ (2002) 3(1) ESR Review 16, 18). This decision is discussed further in Chapters 3, 4 and 6. 153 C Scott, ‘Social Rights: Towards a Principled, Pragmatic Judicial Role’ (1999) 1(4) ESR Review 7, 9. 154 K Pillay, ‘Implementation of Grootboom: Implications for the Enforcement of Socioeconomic Rights’ (2002) 6 Law, Democracy and Development 255, 275. 155 Campodónico de Beviacqua, Ana Carina v Ministerio de Salud y Banco de Drogas Neoplácias, Supreme Court of Argentina, 24 October 2000. 156 For more on the operation of amparo proceedings in a range of Latin American jurisdictions, see A Brewer-Carías, Constitutional Protection of Human Rights in Latin America:

42 Children and Socio-economic Rights on the basis that such state action would deprive her child of his rights to life and health guaranteed by the national constitution and under international human rights treaties.157 This action was based on a threatened violation by the state of its duty to respect (that is, not to interfere with) the child’s enjoyment of his right to health. However, the Supreme Court’s judgment focussed extensively on the obligation of the state to take steps to fulfil the child’s right to health by provision of treatment. The Court ultimately upheld the appellate court’s decision to order the government to continue providing the medication. This decision demonstrates courts’ ability to approach violations of children’s socio-economic rights from a variety of angles where they are called upon to do so. CONCLUSION

This chapter has addressed the three key foci of this work: children, socioeconomic rights and the courts. Having defined the terminology used in the book, I outlined the particular position of children as socio-economic rights-holders, as well as some of the key debates surrounding the nature of such rights. In doing so, I explained why it is important to consider children’s socio-economic rights and the courts’ role in relation to enforcing such. Finally, I highlighted the points of entry and the scope of the judicial activity addressed in the book. The stage has been set for the first part of the book, which centres on the legitimacy of the courts giving effect to children’s rights in terms of liberal democratic constitutional theory. I will now turn to consider the position of the child in democracy.

A Comparative Study of Amparo Proceedings (New York, Cambridge University Press, 2009). For a useful synopsis of the Colombian tutela action (which corresponds in terms of function to the amparo constitutional action), see R Uprimny Yepes, ‘Should Courts Enforce Social Rights? The Experience of the Colombia Constitutional Court’ in F Coomans (ed), Justiciability of Economic and Social Rights: Experiences from Domestic Systems (Antwerpen/ Oxford, Intersentia, 2006) 360–61. 157 Argentinean Constitution, s 42, discusses the right to protection of health in the context of the rights of consumers. However, the establishment of a constitutional right to health resulted from the judicial recognition of the constitutional priority accorded to international instruments setting out that right.

2 Children and Democracy Even when the most basic needs of children for food, shelter and access to medicine emerge as the subjects of politics, they may easily be obscured by still larger or more absorbing concerns … the interests of children seem peculiarly vulnerable to being regarded as insubstantial, obscure or unimportant in whatever becomes the final, schematic view. Perhaps this is because children lack a voice of their own in politics and their needs get too easily amalgamated with the political preferences of their proxies.1 When politicians hold $100-per-plate dinners, nine-year-olds do not buy tables.2

INTRODUCTION

C

HILDREN ARE UNENFRANCHISED. They do not, and cannot, constitute a political constituency able to gain ground through political action.3 The executive and the legislature are not electorally accountable to them and are, therefore, not immediately dependent on their goodwill in order to ensure re-election. Children have no opportunity to exert direct influence on the policy-making process.4 As a result, their interests are unlikely to occupy a consistently large space on the agenda of elected law- and policy-makers.5 Their capacity to exercise indirect influence on the political system is also limited due to, amongst other factors, their inability to organise themselves into an effective pressure group, as 1 J Maslow Cohen, ‘Competitive and Cooperative Dependencies: The Case for Children’ (1995) 81 Virginia Law Review 2217, 2218. 2 R Mnookin, In the Interest of Children: Advocacy, Law Reform, and Public Policy (New York, WH Freeman & Co, 1985) 39. 3 J Sloth-Nielsen, ‘Chicken Soup or Chainsaws: Some Implications of the Constitutionalisation of Children’s Rights in South Africa’ (1996) Acta Juridica 6, 7. 4 As I stated in Chapter 1, there are a few countries in which children may take part in municipal, local or other elections at a younger or older age than is required for participation in national elections. However, this is exceptional. In the vast majority of countries, children become enfranchised for the purpose of all elections at the same age. Therefore, the arguments made in this chapter will proceed on the basis that children become entitled to vote in all elections at the same age before which they have no opportunity to participate directly in democratic decision-making procedures. 5 I say ‘consistently’ because there may, of course, be times when children do occupy a large space on the agenda of elected law- and policy-makers, for instance, where there has been a crisis in relation to child protection, education or juvenile justice.

44 Children and Democracy well as the limited opportunities afforded to them for participation in democratic decision-making. This chapter centres on the position of the child in democracy. In it, I demonstrate that children’s exclusion from the democratic decision-making process, combined with their inability to depend successfully on others to protect and advance their interests, results in the denial of their effective participation and representation in that process. The analysis here will serve as a springboard for my discussion in Chapters 3 and 4, in which I explore what implications the child’s exclusion from democracy will have for the two primary legitimacy objections frequently posed to the judicial enforcement of children’s socio-economic rights; that is, the counter-majoritarian objection and the separation of powers.

Democracy: A Term in Search of a Definition Democracy is both an ideal and a method:6 No explicit definition of democracy is settled among political theorists or in the dictionary. On the contrary it is a matter of deep controversy what democracy really is. People disagree about which techniques of representation, which allocation of power among local, state and national governments, which schedule and pattern of elections, and which other institutional arrangements provide the best available version of democracy.7

For the purpose of this work, a democracy will be defined as rule by the people where ‘the people’ includes all adult citizens not excluded by some disqualifying factor, such as confinement to prison or to an asylum for the mentally ill, or some procedural requirement, such as residency within a particular electoral district for a reasonable length of time before the election in question. ‘Rule’ means that laws or public policies are determined either directly by vote of the electorate or indirectly by officials freely elected at specified intervals and by a process in which the vote of each voter who chooses to participate counts equally, and in which a majority decision is determinative.8 Many theorists have attempted to define democracy in terms of substantive principles which it embodies or attempts to realise. Two notable proponents of such an approach are Ronald Dworkin and Christopher

6

W Riker, Liberalism Against Populism (San Francisco, CA, WH Freeman and Co, 1982) 6. R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA, Harvard University Press, 1996) 15. 8 This definition is largely based on that set out by James Roland Pennock in Democratic Political Theory (Princeton, NJ, Princeton University Press, 1979) 7. 7

Introduction 45 Eisgruber, who argue for particular, value-based conceptions of democracy.9 They use these notions of democracy to justify particular results-oriented judicial activity.10 Such commentators who advance ‘outcomes-related’ defences of judicial review are less concerned by the notion that decisions about political principle or democracy would be made by counter-majoritarian processes, that is, by unelected and unaccountable institutions, than they are that particular results would be achieved.11 In contrast, my choice of definition of ‘democracy’ is not dependent on controversial substantive values, but is an objective description of how legislatures are established and how law is enacted within constitutional democratic systems such as those dealt with in this work. It does not make any claims with regard to the values that the democratic system is founded on or is supposed to embody or pursue. Nor am I proposing a definition under which the courts’ enforcement of children’s socio-economic rights is justified as necessary in order to ensure that the requirements of that particular notion of democracy are met. While my definition makes clear

9 For a critique of what he terms ‘substance-based democracy-supporting justifications’ of judicial review such as those put forward by Dworkin and Eisgruber, see D Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford, Oxford University Press, 2007) 103–5. Bilchitz himself argues in favour of a ‘rightsbased justification’ for judicial review. 10 Dworkin believes that democratic constitutional theory ought to be oriented primarily to results. He argues for the adoption of a ‘constitutional conception’ of democracy, which takes ‘the defining aim of democracy to be … that collective decisions be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect ... Democracy means government subject to conditions—we might call these the “democratic” conditions—of equal status for all citizens’ (Dworkin, above n 7, 15). He argues that this conception of democracy permits judicial intervention where it is necessary to ensure the protection and respect of these democratic conditions (ibid). Eisgruber argues that government by the people cannot be reduced to government by legislatures or government by electoral majorities: ‘Democracy, in sum, is not the same thing as “government by voters”’ (C Eisgruber, Constitutional Self-Government (London, Harvard University Press, 2001) 62). He goes on to argue that, under a deeper understanding of democracy, it becomes possible to understand the Supreme Court as a sophisticated kind of representative institution (ibid 48). Under such an understanding, judicial review should not be regarded as a constraint upon the democratic process but as one institutional mechanism for implementing a complex, non-majoritarian understanding of democracy, which is responsive to the interests and opinions of all citizens and in which impartiality, effective choice, participation and public deliberation are ensured. 11 According to Dworkin, when majoritarian institutions provide and respect the democratic conditions, then the verdicts of these institutions should be accepted by everyone for that reason. However, when they do not, or when their provision or respect is defective, there can be no objection, in the name of democracy, to other procedures such as judicial review that accord them a higher level of protection and respect (Dworkin, above n 7, 17). Eisgruber argues that to make progress towards a practical conception of democracy that emphasises processes and institutions without privileging majoritarianism, we must first put aside the idea that free elections are constitutive of democracy (Eisgruber, above n 10, 83). In his view, the connections between elections and democracy are instrumental ones: elections are held to implement democracy because they achieve democratic goals, not because elections are themselves the goal of democracy (ibid).

46 Children and Democracy that rule by the people is the central tenet of a democratic system, it does not specify if, or how, this rule may be limited by other procedures such as judicial review, activism or policy-making. In particular, it does not state that in order for a law or policy to be consistent with democracy, it must exclusively be the result of a majority decision by either voters or their representatives.

Setting the Scene: The Child as ‘Democratic Citizen’ Having defined ‘democracy’ for the purposes of this work, I will turn to a key theme of the present and the following chapter: the child’s relationship with democracy. Treatment of this subject entails a consideration of the notion of the child as ‘democratic citizen’. As I have argued elsewhere recent years have seen a growing awareness and discussion of ‘the child as citizen’,12 amongst both children’s rights advocates and academics.13 In this respect, attention has been focussed on the extent to which children ‘fit in with’ traditional conceptions of citizenship and citizenship theory.14 Citizenship is a contested, complex notion, with conceptions and perceptions of citizenship differing amongst both academic commentators15 and children themselves.16 I will take TH Marshall’s celebrated, if much criticised,17 analysis of citizenship as my starting point. Marshall regarded citizenship as being composed of three elements: civil, political and social.18 This chapter will primarily focus on children’s enjoyment (or not) of what Marshall labels the ‘political’ element of citizenship;19 that is, the ‘right to participate in the exercise of political power, as a member of a body invested with political authority or as an

12 This section draws on A Nolan, ‘The Child as “Democratic Citizen”: Challenging the “Participation Gap”’ (2010) Public Law 767. 13 See, eg E Cohen, Semi-Citizenship in Democratic Politics (New York, Cambridge University Press, 2009), arguing that children constitute ‘semi-citizens’. See also the work of Mehmoona Moosa-Mitha, some of which is discussed below. 14 See, eg R Lister, ‘Why Citizenship: Where, How and Why Children’ (2007) 8 Theoretical Inquiries in Law 693; H Stalford, ‘The Citizenship Status of Children in the European Union’ (2000) 8 International Journal of Children’s Rights 101. 15 See W Kymlicka and W Norman, ‘Return of the Citizen: A Survey of Recent Work on Citizenship Theory’ (1994) 104(2) Ethics 352. 16 See, eg R Lister, N Smith, S Middleton and L Cox, ‘Young People and Citizenship’ in K Tisdall et al, Children, Young People and Social Inclusion: Participation for What? (Bristol, Policy Press, 2006) 33. See also, in a UK context, the findings of A Anderton and R Abbott, Youth Engagement: Deliberative Research (Youth Citizenship Commission, January 2009). 17 See, eg B Turner, ‘Citizenship Studies: A General Theory’ (1997) 1(1) Citizenship Studies 5, 11–16. 18 T Marshall, Sociology at the Crossroads (London, Heinemann, 1963) 73–74. 19 Ibid.

Introduction 47 elector of the members of such a body’.20 Marshall is concerned with ‘political’ citizenship related to the ability to hold political office or to vote, both of which are denied to some or all children in all liberal democracies. Indeed, according to Marshall, children ‘by definition’ cannot be citizens. They are ‘citizens in the making’, rather than ‘full members of the community’.21 This chapter will look more broadly at children’s relationship to democratic politics. As I have argued previously, consideration of the child’s relationship to democratic political processes entails a broader, different construal of ‘the right to participate in the exercise of political power’ than that employed by Marshall. In light of this, I will employ the terminology of the ‘democratic’ element of children’s citizenship (instead of the ‘political element’) which I understand to encompass a more nuanced sense of how children may interact with, and contribute to, the exercise of political power in a society. I am, however, primarily concerned with children’s relationship with, and impact on, democratic government, including law and policy-making. This contrasts with those commentators who equate ‘democracy’ with non-political institutions and systems such as civil society.22 By primarily focussing on a variant of the ‘political’ element of citizenship, this work only pays limited attention to other elements of Marshall’s typology that may relate to the effective implementation of children’s socioeconomic rights, either through democratic decision-making structures or otherwise. For instance, the social element of children’s citizenship is clearly linked to children’s enjoyment of their socio-economic rights, in light of Marshall’s construal of social rights as constitutive of that element of citizenship (albeit that his conception of ‘social rights’, with its predominant focus on education and economic welfare and security, does not correspond fully to the definition of socio-economic rights employed in this book).23 While children may be accorded those socio-economic rights that would seem to accord with notions of ‘social citizenship’, one of the underlying concerns of this book is the failure of those exercising political power to give effect to such rights, thereby severely curtailing children’s enjoyment of this element of citizenship. One of the key causes for this failure is the non-accordance to children of the right to participate in the exercise of political power. 20

Ibid 74. Ibid 84, 87. 22 G Lansdown, Children’s Participation in Democratic Decision-Making (Florence, Innocenti Research Centre, 2001) 6 and throughout. 23 The social element of citizenship, according to Marshall, means ‘the whole range from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live in the life of a civilised being according to the standards prevailing in the society’ (Marshall, above n 18, 74). 21

48 Children and Democracy Similarly, the civil element of citizenship undoubtedly has a key role to play in children’s enjoyment of socio-economic rights. Many of the rights that Marshall associates with civil citizenship, and which have a clear relationship with children’s enjoyment of ‘democratic’ citizenship, are accorded to children, whether under the Convention on the Rights of the Child (CRC) and/or the national constitutions under consideration in this work. Such rights include the rights to freedom of expression, association, thought and conscience. While the CRC and some constitutions accord those rights to children specifically,24 children enjoy such rights under other international instruments and constitutions due to their inclusion within the right-holder category of ‘everyone’. Crucially, however, even where children are accorded the civil and political rights accorded to ‘everyone’, they may not enjoy the full exercise of such rights in practice due to biologically, socially and legally constructed obstacles.25 Ultimately, the denial of ‘political’ rights to children is more profound than the denial of civil rights. Furthermore, their non-enjoyment of political rights is more directly linked to their exclusion from the political processes and institutions that are primarily responsible for implementing socio-economic rights. Hence, it makes sense to focus on that element of citizenship to a greater extent. My concern is very much with the liberal notion of ‘citizenship’ as a rights-based or focussed status, rather than with broader conceptions of citizenship, such as, for instance, those linked to identity or membership of a community.26 The fact that I am working with what some might regard as a rather ‘denuded’ legal version of citizenship is not to suggest that citizenship as ‘identity’ or ‘membership of a community’ is not significant to children, and for particular groups of children especially (for instance, children who are members of ethnic minorities, are migrants, or are living with disabilities). Indeed, the inclusive/exclusive dichotomy resulting from the failure of ‘universalist’ conceptions of citizenship to accommodate what Lister calls a ‘difference-centred’ theorisation of citizenship pluralism will have clear implications as regards where the line of exclusion falls between adults and children, and between some children and other children.27 Commentators such as Cockburn have warned against the reduction of citizenship to legal rights held against the state and others;

24

See, eg Constitution of Ecuador (2008), arts 39 and 45. For more on this see Nolan, above n 12. See also A Invernizzi and B Milne, ‘Conclusion: Some Elements of an Emergent Discourse on Children’s Right to Citizenship’ (2005) 9 Journal of Social Sciences 83, 84, who express serious concern about the extent to which the CRC can serve as a vehicle for a (broadly construed) conception of children’s citizenship. 26 For a critique of rights-based approaches to children’s citizenship and a construction of children’s citizenship as a form of political identity, see J Kulynych, ‘No Playing in the Public Sphere: Democratic Theory and the Exclusion of Children’ (2001) 27(2) Social Theory and Practice 231. 27 Lister, above n 14, 698. 25

Representation of Children in Democracy 49 in his view, a more public-spirited and radical conception needs to be adopted that acknowledges participation and civic activity.28 I do not claim that child participation linked to citizenship should only take place in the formal, public political sphere (that is, through voting and representation) rather than encompassing the wide range of other social relations in which children are embedded, including those traditionally considered to be in the ‘private’ realm.29 However, this chapter is focussed specifically on the child’s exclusion from the political sphere. Therefore, to conceptualise citizenship as rights operating against the state in the public sphere seems particularly appropriate. This work centres on a liberal model of citizenship on the basis that the core of republican models of citizenship—political agency and active participation in self-rule—is denied to children. REPRESENTATION OF CHILDREN IN DEMOCRACY

So, how is children’s democratic citizenship (that is, children’s relationship to democratic political processes) manifested in practice? Answering this question will entail an interrogation of long-standing presumptions about the representation and participation of children in democracy. Although children do not vote, it has traditionally been assumed that they will be protected within democracy through representation in the political system by other enfranchised groups. It is, therefore, necessary to critically assess this presumption. Giving a full picture of the representation of children in democracy is crucial due to its implications for the notion of governance representative of the will of the people and the position of children as ‘democratic citizens’. My first step here is to consider the theory of virtual representation and children. According to Edmund Burke: virtual representation is that in which there is a communion of interests and a sympathy in feelings and desires between those who act in the name of any description of people and the people in whose name they act, though the trustees are not actually chosen by them.30

Thus, constituencies could legitimately be represented by legislators possessing ‘a communion of interests and a sympathy in feelings and desires’ with their constituents even if the representatives were not actually elected by the people said to be represented.31 28 T Cockburn, ‘Children as Participative Citizens: A Radical Pluralist Case for “Childfriendly” Public Communication’ (2005) 9 Journal of Social Science 19, 22. 29 This is the approach recommended by Cockburn and many others working in the context of child citizenship. 30 Letter from Edmund Burke to Sir Hercules Langrishe, MP, 3 January 1792, available at www.ourcivilisation.com/smartboard/shop/burkee/extracts/chap18.htm. 31 C Peters, ‘Adjudication as Representation’ (1997) 97 Columbia Law Review 312, 343–44. For an in-depth consideration of Burke’s concept of virtual representation, see H Pitkin,

50 Children and Democracy Virtual representation could arise for children in three main ways: (1) (2)

(3)

there could be a communion of interests between children and elected representatives such as to guarantee virtual representation for children; there could be a communion of interests between children and those members of society who vote such as to guarantee virtual representation for children; there could be feelings of empathy with or sympathy for children on the part of legislators or adults generally such as to guarantee virtual representation for children.

Recognition by potential representatives of children of their shared interests with children and the resulting advancement of such is certainly not the only way in which representation might be ensured for children’s interests in the political system.32 I will, therefore, also address other ways, not based on shared interests, in which children may be represented by others in democracy, as well as other means by which children’s interests might be brought to bear in democracy.

Representation of Children by Elected Representatives Discussions of representation in democracy necessarily tend to centre on the role of elected representatives. The notion of interest representation is incorporated within a proceduralist theory of democracy. Traditionally, interest representation is understood to operate because the representative’s interests are the same as the interests of a majority of her constituents.33 Thus, representation of citizens by their elected representatives occurs through interest congruity. I will argue here that children cannot rely on elected representatives to represent them on the basis of their shared interests. Viewing politics from a cynical (or perhaps simply a realistic) point of view, the main concern of most elected policy-makers is incumbency and, even where they may be regarded as having ‘a communion of interests and

The Concept of Representation (Berkeley, CA, University of California Press, 1967) 172–80. 32 Ely, whose work will be discussed in Chapter 3, has argued that judicial review is justified where there is a lack of a kind of ‘virtual representation’ of minorities by the representatives elected by the majority: where representatives systematically disadvantage some minority out of simple hostility or a prejudiced refusal to recognise commonality of interest. This may occur where the pluralist model of politics does not work and minorities cannot protect themselves by striking deals or stressing the ties that bind the interests of other groups to their own (J Ely, Democracy and Distrust (Cambridge, MA, Harvard University Press, 1980) 135). I will argue below that children are unable to do this and hence are dependent on other groups to recognise their commonality of interests in order to ensure their representation and protection under a representative system. 33 Peters, above n 31, 343.

Representation of Children in Democracy 51 a sympathy in feelings and desires’ with children, these shared interests will generally be subordinated to their desire to ensure re-election. Hence, where children’s interests may prove a political liability or their vindication may require an elected representative to go against popular opinion or alienate other enfranchised groups competing for the same resources, the legislator’s primary interest in incumbency will override those interests that they share with children and virtual representation will not occur. A South African instance in which promoting shared interests with children was unlikely to be politically expedient was that of juvenile justice following the release of juveniles from pre-trial detention under the Correctional Services Amendment Act in 1994. 34 The Act was introduced in response to a non-governmental organisation (NGO)-led campaign against the detention of children in adult prisons pending trial. This legislation might be regarded as (at least partially) emanating from legislators’ ‘shared interest’ with children to live in a society where children are valued, ie where their rights are protected and they are not detained in adult prisons. Under the Act, children (other than those guilty of certain listed ‘serious offences’) were to be released from prisons and police cells, and moved to alternative accommodation (a ‘place of safety’ defined in section 1 of the Child Care Act, 1983). Little had been done to develop the infrastructure that was needed to make the Act workable. This led to pandemonium upon the legislation coming into force, with children absconding from places of safety all over the country, many failing to return to stand trial.35 There was a public outcry, the flames of which were enthusiastically fanned by the media. As a result, the political will in relation to the situation of children awaiting trial began to waver and a few months later a second amendment was passed, empowering the courts to order that certain children could be held in prison to await trial.36 In an article written shortly after the debacle, Sloth-Nielsen suggested that, based on the media turnaround in the space of a few weeks from describing incarcerated children as victims to recasting them as ‘teenage thugs’, it was possible that public sympathy might wane to the extent that political support for children’s rights as a priority issue would vanish.37 While it is difficult either to definitively confirm or deny Sloth-Nielsen’s suggestion, it is clear that South African society’s concern about crime has increased since 1995 and that there is a general perception of an upsurge in crime committed by children. This is despite the fact that, in 2008 for instance, children only constituted approximately 1 per cent of 34

Act 17 of 1994. A Skelton, ‘Juvenile Justice Reform: Children’s Rights and Responsibilities Versus Crime Control’ in C Davel, Children’s Rights in a Transitional Society, Proceedings of a Conference Hosted by the Centre for Child Law in Pretoria, 20 October 1998 (Pretoria, Protea Book House, 1999) 88, 98. 36 Ibid 99. 37 Sloth-Nielsen, above n 3, 25. 35

52 Children and Democracy the prison population.38 As in many countries, children are often portrayed by the South African media as perpetrators of crime.39 Children are thus not a group with whose issues it might be beneficial for a politician seeking re-election to become associated. One can think of numerous scenarios in which political representatives might choose to ignore or subordinate common interests with children in favour of advancing their own political interest. An instance involving children’s socio-economic rights might arise where an elected representative is faced with choosing between allocating public monies to primary education facilities or, alternatively, to increasing pensions. In such a case, a representative may well decide to ignore her shared long-term interest with children in ensuring that there will be an educated workforce in the future (which will, in turn, be in a position to contribute to the social welfare system when the representative reaches retirement age, thereby ensuring her pension). Instead, she may pursue the option which will benefit her short-term incumbency interest by attracting support from enfranchised elderly voters. But surely, one might argue, the fact that legislators were once children means that they can be expected to recognise shared interests with children or be otherwise predisposed to advance children’s interests in democracy? Such an argument might seem sustainable were it not for the fact that the childhood experienced by contemporary children will frequently be very different from that experienced by legislators—not to mention that there is no reason to assume that legislators can, in fact, fully remember their childhood. Indeed, moving on from the assumption that legislators will naturally be predisposed to advance children’s rights in the democratic process on the basis of their own one-time child status, it is necessary to consider the possibility that legislators may actually be inclined towards ignoring their shared interests with children. One reason for this might be legislator prejudice against children. It is possible to make the (admittedly weak) argument that adults in general (including legislators) are indeed prejudiced against children. For instance, just as white people historically regarded black people as inferior, so children are regarded by society as inferior to adults. However, I concede that regarding children as inferior or not liking them may not amount to children in general being the victims of express prejudice or hostility. That is not to say, however, that children in general may not be the subject of widespread societal hostility. In Germany, for instance, there is an identified sociological phenomenon called Kinderfeinlichkeit (hostility to children) which is arguably reflected in child-rearing practices and societal attitudes 38 ‘Child Justice Alliance objects to media statistics’, Legalbrief Today, 28 August 2008, available at www.legalbrief.co.za/article.php?story=20080828081217386. 39 See the discussion of the Empowering Children and Media Project findings, below.

Representation of Children in Democracy 53 towards children. Evidence of this is provided by the large number of complaints that are made each year about noise levels in kindergartens, children’s playgrounds and leisure centres by residents living near such facilities; noise that continues to be captured by the strict laws on noise pollution in many parts of Germany.40 This terminology of Kinderfeinlichkeit has recently been employed in jurisdictions such as the United Kingdom by commentators criticising societal, media and political attitudes towards children.41 Overall, however, I think it is reasonable to conclude that adults (including legislators) are unlikely to be prejudiced against all children per se. My second argument is stronger. Even if legislators are not prejudiced against all children, that certainly does not mean that they are not prejudiced against some. One might argue that there are instances where the ‘incumbency’ interest of elected representatives is best served when they ignore their shared interests with certain children and actively work against such children; for instance, where such children are members of unpopular minorities; where they occupy a sphere regarded as outside the normative socialising control of adult society;42 where they cannot or will not fulfil their expected roles in the transmission of ‘traditional values’;43 or where they are the subject of societal hostility. Burns and Crawford provide a US example of where it has served politicians to work against children, discussing the vested interest of politicians in promoting tougher legislation surrounding juveniles in the aftermath of school shootings in the United States. They argue that politicians’ interests largely lie in the hands of the voters, who, through their ‘media-filtered and culturally influenced’ understanding of the situation largely support the idea of increased punishment for juvenile delinquents.44 They observe that: [i]n juveniles and more specifically juvenile delinquents, politicians have an ideal target for action. Increasing the penalties directed towards juvenile delinquents is a no-lose situation for politicians, mainly because such an approach has become popular with the general public. Juveniles are not permitted to vote in popular elections, and they are not likely to develop lobby, or special interest groups. Thus, politicians do not fear losing juveniles’ votes upon election day nor any threat of opposition.45

The same is true of politicians’ treatment of children in a wide range of jurisdictions who have been subjected to what are portrayed as ‘public 40 41

‘Noisy children no longer verboten in Berlin’, BBC News, 17 February 2010.

M Rice-Knight, ‘The kids aren’t alright’, The Observer, 5 December 2004. S Stephens, ‘Introduction’ in S Stephens (ed), Children and the Politics of Culture (Princeton, NJ, Princeton University Press, 1995) 1, 11. Stephens provides the example of street children. 43 Ibid. 44 R Burns and C Crawford, ‘School Shootings, the Media, and Public Fear: Ingredients for a Moral Panic’ (1999) 32 Crime, Law and Social Change 147, 156–7. 45 Ibid 157. 42

54 Children and Democracy order’ motivated measures. These range from formal measures, such as state-enacted juvenile curfews, antisocial behaviour orders and other socalled ‘status offences’,46 to informal ones like the ‘street cleansing operations’ (often carried out by state agents) directed at the extermination of street children and other ‘undesirable’ children that have been perpetrated in a number of Latin American countries.47 Leaving aside the issue of prejudice, the major reason why virtual representation of children in the political process by elected representatives may not work is the fact that often there is no real communion of interests between the two groups. Due to their socio-economic status, the interests of elected representatives will frequently fail to coincide with those of disadvantaged children.48 As most children who suffer violations of their socio-economic rights are from disadvantaged backgrounds, it is clear that they will almost always have a very different socio-economic status from that of elected politicians. Therefore, those decision-makers will not be affected by measures impacting upon those children’s access to socio-economic goods and services, such as cuts to the cash transfer programmes or other elements of the social protection systems. Furthermore, the difference between the position of elected representatives and that of children may mean that legislators do not realise the potential or actual impact of particular laws on children’s socio-economic rights. They will not properly appreciate the perspective of the children whose rights are at issue, given the divergence between their life experiences and viewpoints and those of the rights-holders.49 As a result, 46 Status offences are those acts that would not be criminal if they were committed by adults but are where they are performed by children. For a useful discussion of such, see Child Rights Information Network, Global Report on Status Offences (London, CRIN, 2009), available at www.crin.org/docs/Status_Offenses_doc_2_final.pdf. 47 For more, see, eg Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Civil and Political Rights, including the Questions of Disappearances and Summary Executions: Extrajudicial, Summary or Arbitrary Executions, UN Doc E/CN.4/2003/3 (2003) para 61; and UN Doc E/CN.4/2004/7 (2004) paras 72–73. 48 For instance, research commissioned by the Constitution Review Group in Ireland revealed that lower socio-economic groups are significantly underrepresented in the two houses of the legislature, the Dáil and Seanad. While 32% of the population between the ages of 21 and 70 belong to the skilled manual, semi-skilled manual and unskilled manual categories, only 2% of the membership of the 27th Dáil in 1992 belonged to the skilled manual category and no member of that Dáil came from either of the other two categories (cited in G Whyte, Social Inclusion and the Legal System: Public Interest Law in Ireland (Dublin, Institute of Public Administration, 2002) 32). Of those deputies elected to the 29th Dáil in 2002, almost half were professionals and very few were manual workers of any skill level (source: M Gallagher, ‘Stability and Turmoil: Analysis of the Results’ in M Gallagher, M Marsh and P Mitchell, How Ireland Voted (Palgrave MacMillan, 2003) 88, 114). This was a very different socio-economic profile to that of poor children in Ireland at the time. 49 Dixon has referred to such a situation as a ‘blindspot of perspective’ (R Dixon, ‘Creating Dialogue about Socioeconomic Rights: Strong-form Versus Weak-form Judicial Review Revisited’ (2007) 5 International Journal of Constitutional Law 391, 402). What she terms blindspots of ‘application’ (caused by ‘time pressures on legislative deliberations or because of

Representation of Children in Democracy 55 whatever a legislator’s professed concern for children, this is not sufficient to guarantee their virtual representation where re-election chances are better served by focussing on the interests of others. Before moving from this discussion of the virtual representation of children’s rights and interests by elected representatives, it is important to highlight key obstacles to the effective representation of children by legislators that are rooted in the legislative process itself; namely, what Dixon has termed ‘burdens of inertia’. In asserting that the argument for judicial review derives from the courts’ ability to help counter failures of inclusiveness and responsiveness in the political process,50 Dixon has highlighted the challenge that burdens of inertia in the legislative process may pose to the realization of rights-claims by those processes.51 Dixon does not present her claims in the context of children’s rights claims specifically, but the notion of such ‘burdens’ has particular implications for children given their situation in democracy. Dixon outlines two ways in which ‘burdens of inertia’ may arise. First, capacity constraints (for instance, the time-consuming nature of legislative processes) mean that there will necessarily be little space for legislative majorities to prioritise rights-based claims advanced by a relatively small minority, even if the constitutional culture would generally accept the validity of those claims.52 Admittedly, children are not a ‘relatively small minority’ numerically but they can certainly be regarded as such in terms of the amount of power they are able to exercise in legislative processes. I argue in Chapter 3 that there is general agreement with regard to the fact that children do have socio-economic rights and that, in many cases, there is general acceptance of the validity of children’s claims.53 However, Dixon’s first category of ‘burdens of inertia’ mean that such claims are highly unlikely to be prioritised unless a large number of voters perceive them as legitimate and urgent. As we will see later in this chapter, this is unlikely to occur where such interests fail to serve adult agendas.

other limitations on legislative foresight’) and ‘accommodation’ (caused by legislators ‘being ill-equipped to perceive ways in which a rights-based claim might more fully be accommodated, without undue cost to the relevant legislative objective’) may also arise in the context of legislative processes (ibid). However, in my view, as these blindspots are attributable to issues of what Dixon labels ‘legislative foresight’ and limited legislative experience (ibid), they do not raise particular issues with regard to children’s socio-economic rights when compared to the rights of other groups. 50 Ibid. According to Dixon, her theory of cooperative constitutionalism suggests that, in enforcing rights (including socio-economic rights) courts have a much greater capacity, even a responsibility, to play an active role in countering ‘blindspots’ and ‘burdens of inertia’ in the political process than is envisaged by other theories of cooperative constitutionalism. 51 See, eg R Dixon, ‘A Democratic Theory of Constitutional Comparison’ (2008) 56 American Journal of Comparative Law 947. 52 Ibid 967. 53 See the discussion of Waldron’s work in Chapter 3.

56 Children and Democracy In addition, Dixon argues that legislative processes may be subject to burdens of inertia that are coalition-driven rather than priority-driven in nature. Where this is the case, the desire to retain unity and coherence within that coalition will result in leaders who will ‘go to significant lengths to avoid addressing internally divisive questions, even where the broader constitutional culture would support reconsideration of the legal status quo (coalition-driven inertia)’.54 Even if the fact of children’s status as economic rights-holders is generally agreed upon, there is no doubt that giving effect to such rights may sometimes be internally divisive due to disagreement about what the detailed application of such rights may entail.55 Where the implementation of children’s socio-economic rights is perceived as such, then legislative actors and processes seem likely to prove unresponsive to such claims where this divisiveness is perceived as threatening actual or apparent party-political coherence. In sum, the lack of mutual interests, the willingness of members of the elected branches of government to jettison those interests that they do share with children, and the risk of ‘burdens of inertia’ within the legislative system mean that political representatives cannot be presumed to ensure the representation of children in the democratic process.

Representation of Children by Parents So what of the role of parents in ensuring child representation in democracy? At first glance, it seems only logical that parents will ensure that the interests of children are represented effectively in the democratic process by means of serving as fiduciary of those interests in the political context. Indeed, this has been the traditional assumption of democratic theorists.56 Children’s interests (both socio-economic and other) often overlap and are entwined with those of their parents. We may presume that parents want what is best for their children and will hence vote for candidates and policies that will benefit their own children’s interests. This belief in the concern of parents for their own children may be expanded into a broader presumption that adults who are parents will vote in favour of measures that benefit children’s interests generally. Parents Representing Their Own Children’s Interests A (perhaps surprising) level of controversy surrounds the traditional presumption that children and their interests will be represented in democratic 54

Dixon, above n 51, 968. For more, see the discussion of Waldron’s work in Chapter 3. 56 See N Komesar, ‘Taking Institutions Seriously’ (1984) 51 University of Chicago Law Review 366, 374. 55

Representation of Children in Democracy 57 decision-making processes by their parents. As I have already observed in Chapter 1, the reality is that the family, far from being a paragon of social justice, is likely to share and operationalise the sexist, adultist and other prejudiced attitudes of other social institutions. These may serve to disadvantage some or all of its child members vis-à-vis their adult care-givers and certainly does not suggest that adults will always effectively represent the rights and interests of their children. This seems particularly likely to be an issue where there is an apparent conflict between the interests of parents’ different children and each of these interests bear their own resource implications, thus entailing a possible either/or decision on the part of parents when it comes to voting. In light of the concerns of Okin and others about the hierarchical and prejudiced nature of family power relationships,57 there is no reason to assume that parents will accord equal attention and weight to the interests of all their children. Admittedly, there is a growing appreciation in many societies of the status of children as rights-bearers who are entitled to be involved in decision-making that affects them. However, one may query the extent to which this has really impacted upon the existing power relationships or approaches to decision-making within families. For instance, having noted the growing claims by some social theorists that relationships within families have become more ‘democratic’, Cockburn emphasises the reality that relationships between parents and children occur within structural relations as parents and children: ‘thus parents or guardians’ consultation with their children remains largely a gift that parents can give to their children if they wish, or equally could deny’.58 Furthermore, while such consultation is undoubtedly symbolic of a greater level of intergenerational dialogue within families, the extent to which such dialogue will necessarily result in children’s views of their own rights and interests being taken on board by parents is unclear, whether in relation to democratic decision-making or in other contexts. Overall, however, it is probably safe enough to presume that, in many contexts, parents will act so as to ensure that their children’s interests are represented in the political process—at least to the extent that they share these interests or that such interests do not interfere with other interests of their own. For instance, a parent who favours vaccination will support a politician who promises to ensure that all the children in her constituency are given the flu vaccine due to the fact that this will satisfy both the parent’s love-based interest in his child being healthy and comfortable (which the child shares) and his own selfish interest in not having to take time off work in order to care for a sick child.

57 58

See S Okin, Justice, Gender and the Family (New York, Basic Books, 1989). Cockburn, above n 28, 24.

58 Children and Democracy Another example could be the parent of a child with learning disabilities who is likely to vote for a candidate promising to establish appropriate educational programmes for such children. Such a vote may be viewed as pursuing the parent’s interest in not having to bear the cost of the child’s education. At the same time, it may be construed as a vote for the shared interest of the child and parent in ensuring that the child receives an adequate education which will, in turn, promote the child’s autonomy and independence from the parent. A final case might be that of parents who vote in favour of candidates promising to provide social housing to families with children. In this case the parent (as well as the child) will benefit directly from such a policy as he or she will share the housing provided. This last instance might be viewed as the parent ‘free-riding’ on the child’s rights. While most parents will ensure the effective representation of their children out of love and concern, even the most selfish and indifferent of parents may seek to ensure their children’s socio-economic interests through the political system by supporting candidates espousing policies that will reduce their obligation to materially provide for their children. Thus, an uncaring parent may support political efforts to increase child benefit as this will lead to a rise in overall household income, which will benefit both the child and the rest of the family. However, parents’ interests often diverge from those of the child59 and this is when virtual representation of children’s interests by parents may be lacking. For instance, a parent might not vote for a measure that aims to introduce compulsory health check-ups for children conducted in schools. Although the parent may have an interest in the child remaining healthy (based both on love and self-interest) and is aware that such check-ups would mean that the child would receive better medical attention than she would otherwise, the parent may feel that his interest in family privacy and parental autonomy should take precedence over the child’s interest in benefiting from superior health services. The above example is illustrative of one of the major obstacles to the effective representation of children’s interests by parents through the political system. Many parents might argue that their own children do not need strong protection or provision from the legislature/executive as they, the parents, will provide it. This view is premised on the idea of parental autonomy and a (sometimes misguided) belief that a parent will always be able to identify objectively what is best for her child. Notions of family privacy and parental autonomy may result in a reluctance on the part of 59 W Fitzgerald, ‘Maturity, Difference, and Mystery: Children’s Perspectives and the Law’ (1994) 36 Arizona Law Review 11, 65. Fitzgerald is writing about children’s interests in ‘their own care, support, control, custody and familial relationship’. However, her point is also true of children’s socio-economic interests.

Representation of Children in Democracy 59 parents to permit significant state interference with family autonomy, to the extent that they will not forward or ‘turn over’ children’s interests to the democratic process. This will amount to a lack of representation of children by their parents. A less benign reason for parental failure to virtually represent children is where parental interests are served through the disadvantaging of those of their children. A historical example of this is the opposition of many parents to the introduction of compulsory education and labour laws in the United States in the 1920s arising from, amongst other things, the benefit to the parents’ socio-economic conditions brought about by the income provided by their children’s labour.60 Even if it were always true that children’s interests were adequately represented by their own parents, in the absence of virtual representation by non-parents this would prove insufficient to protect the interests of all children in society for a number of reasons. First, children who live in poor socio-economic conditions often come from families where parents do not vote. In the Irish context, for instance, Marsh and Gallagher have found evidence of a negative relationship between turn-out in a constituency and the presence of persons’ semi-skilled or unskilled manual occupations in that constituency.61 Such findings would appear to indicate that socioeconomically disadvantaged parents in Ireland are less likely to vote than their more affluent counterparts, thereby resulting in a loss in representation of their children’s interests. Secondly, some children’s parents cannot vote. An American example of this would be children whose parents have been convicted of a felony, living in states where the law provides that once a person has been convicted of such an offence, they lose their right to vote. As there is often a much higher level of felony convictions per capita in disadvantaged communities, children living in such conditions will suffer from a disproportionate lack of representation due to their parents’ disenfranchisement. For instance, a 2003 report by the Mexican American Legal Defense Fund (MALDEF) found that Latinos are more likely to be banned from voting compared to their percentage of the voting population as a result of these laws.62 This will clearly have a significant impact on the representation of children from Latino communities by their parents.

60 For more on this, see B Bennett Woodhouse, ‘“Who Owns the Child?”: Meyer and Pierce and the Child as Property’ (1992) 33 William and Mary Law Review 995. 61 P Lyons and R Sinnott, ‘Voter Turnout in 2002 and Beyond’ in M Gallagher, M Marsh and P Mitchell (eds), How Ireland Voted 2002 (Palgrave MacMillan, 2003) 142, 148. For more, see N Hardiman, ‘Inequality and the Representation of Interests’ in W Crotty and D Schmitt, Ireland and the Politics of Change (London, Longman, 1998) 122. 62 MALDEF, Diminished Voting Power in the Latino Community: The Impact of Felony Disenfranchisement Laws in Ten Targeted States (MALDEF, 2003).

60 Children and Democracy Migrant workers are frequently barred from voting, both in their state of origin and their state of employment. Again, this will have clear implications for the ability of such parents to represent their children through the electoral system. Another group of children that is likely to suffer from non-representation due to their parents being unable to vote are members of families that are internally displaced. In its 2006 Concluding Observations on the state report submitted by Colombia in accordance with the International Covenant on Civil and Political Rights, the UN Human Rights Committee expressed its concern regarding the difficulties experienced by internally displaced persons in exercising their civic rights, especially the right to vote.63 Thus, children who are internally displaced (a group which has been identified as particularly vulnerable by both the UN Committee on the Rights of the Child64 and the Colombian Constitutional Court)65 are at risk of being unable to benefit from virtual representation by their parents. Thirdly, children may not have parents or guardians to vote on their behalf at all. This is a growing issue in many Sub-Saharan African countries where AIDS has led to a huge number of child-headed households.66 Such children have no parent or guardian to represent their interests at the polls. Therefore, they must rely on groups other than their own parents in order to ensure democratic representation of their interests. Finally, where children have been taken from their parents and put in state care due to, for instance, parental neglect or abuse, not only do they arguably have no parent to vote on their behalf,67 but their legal guardian (the state) is not empowered to vote on their behalf. Indeed, their guardian in such a case may have serious conflicts of interest with efforts to vindicate children’s socio-economic interests, in light of, amongst other things, the costs that giving effect to such interests may entail for the state. 63 Human Rights Committee, Concluding Observations: Colombia, UN Doc CPR/CO/80/ COL (2004) para 19. 64 UN Committee on the Rights of the Child (ComRC), Concluding Observations: Colombia, UN Doc CRC/C/COL/CO/3 (2006), highlighting the ‘pervasive discrimination and social exclusion which affects vulnerable groups’, such as internally displaced children (para 77(d)). 65 See, eg that Court’s findings in T-025/04. 66 Sloth-Neilsen has highlighted that children may also be orphaned or left without adult care-givers for a range of reasons, not just because of the HIV/Aids pandemic. For example, parents may die from other causes, such as motor vehicle accidents. Alternatively, they may migrate and otherwise abandon their child (J Sloth-Nielsen, Realising the Rights of Children Growing up in Child-headed Households: A Guide to Laws, Policies and Social Advocacy (Bellville, Community Law Centre, 2004) 6. Other causes of child-headed households or children growing up alone include armed conflict and natural disasters. 67 I say ‘arguably’ because in some developed countries children are removed from lowincome families on the grounds that parents have failed to provide their children with necessities or because of homelessness. The removal of such children is not due to their parents being ‘bad’, unconcerned or unloving. Thus, such parents may be presumed to vote to represent their children’s interests.

Representation of Children in Democracy 61 Parents Representing Children’s Interests Generally I will now turn to the issue of parents ensuring representation for the interests of children in general and not just the particular interests of their own children. Mnookin states that ‘[p]arents are the obvious potential spokesmen for children … [however, the] more diffuse the payoff to one’s own child, the less likely an individual parent is to pursue it’.68 In addition, he considers that, since most parents look first to their own children’s interests, parent groups tend to split into self-protective factions instead of focussing on the needs of children in general.69 An example of an attempt by parents to ensure that their children’s interests are forwarded in the democratic process is the campaign conducted by parents of children with autism in Ireland over the last 15 years. The aim of these parents has been to compel the Irish state to vindicate the constitutional right to primary education of their children by, amongst other things, making funding available for appropriate services and facilities. Although the campaign first came to widespread public attention as the result of a particular constitutional case involving an adult plaintiff,70 this was merely part of a broader strategy to vindicate the rights of children with autism through the political processes. The campaign has been successful in increasing public awareness and support for both children with disabilities and carers of such children. It led to promises of increased governmental spending on special needs education, and state provision of greater numbers of special classes, resource teachers and special needs assistants.71 There was also a governmental undertaking to provide rights-based disability legislation which did not materialise. However, the defining feature of this and many other campaigns for children with disabilities is that the backbone of the movement was parents of children affected by these disabilities—not parents in general. One is left to wonder whether the popular support of the rights of children with autism would have arisen if it had not been for the dedicated efforts of such children’s own parents. Furthermore, while there might be general parental support for issues such as increased funding for special needs education, there is little reason to believe that this will prevail over other, closer-to-home concerns when it comes to a choice between candidates at election time.

68

Mnookin, above n 2, 39. Ibid. 70 Sinnott v Minister for Education [2001] IESC 39. 71 See, eg S Flynn, ‘Special needs expenditure up by £63m’, Irish Times, 26 November 2001; S Flynn and J Downes, ‘INTO welcomes 660 special posts’, Irish Times, 9 May 2005. Much of this progress has been reversed as a result of financial cuts following the economic crisis in Ireland from 2009 on. 69

62 Children and Democracy It must also be borne in mind that an important aspect of the example set out above is that satisfaction of the needs of autistic children (a finite, compassion-generating, cross-class group) was not perceived by other parents as endangering/threatening the interests of their own children. While parents may be prepared to represent the interests of a particular group of children in the political process, this will not necessarily mean they will represent all such children. This can be linked to the notion of ‘other people’s children’. Other people’s children may be ‘shiftless or dangerous influences on one’s own children; they may be potential competitors to one’s own children in schools or in entry into limited occupations; they may impose social costs that detract from one’s own children’s opportunities’.72 These concerns mean that ‘other people’s children’ may not necessarily be a group whose interests parents are interested in representing and promoting in the democratic process. Lazerson and Grubb argue that: [T]he differentiation among children becomes most powerful in an unequal society. Class and racial biases harden the negative perception of other people’s children, and income differences, with the implication that public responsibility requires redistribution from rich to poor, reinforce the fear that other people’s children are costly liabilities.73

As stated in the Foreword, inequality is a growing feature of many societies over the past two decades and has been accompanied by a rise in levels of child poverty. Where such inequality exists, it may result in a refusal of parents in one group of society to recognise their shared interests with children in another group, leading to such parents not voting to advance those interests. Alternatively, a lack of virtual representation in such contexts can also be attributed to the fact that in an extremely unequal society, it is less likely that there will be a communion of interests between adults and children in different societal groups. The concept of family autonomy may also play a part in explaining the unwillingness of parents to represent the interests of other people’s children.

72 WN Grubb and M Lazerson, Broken Promises: How Americans Fail Their Children (Chicago, IL, University of Chicago Press, 1982) 78. For an excellent description and analysis of societal attitudes towards ‘other people’s children’, see ibid 78–85. While the authors write in an American context, much of what they write is applicable to other societies where there are sharp social and economic inequalities. Woodhouse points out that racism and economics complicate all of our political responses, including our responses to children’s rights (B Bennett Woodhouse, ‘The Constitutionalisation of Children’s Rights: Incorporating Emerging Human Rights in Constitutional Doctrine’ (1999) 2 University of Pennsylvania Journal of Constitutional Law 1, 2–3). She argues that we have a tendency to see children in shades of rich and poor, black and white, and ‘them’ against ‘us’; while our own children are our most precious personal possessions, those of other people are armed and dangerous, alien and out of control (ibid 3). 73 Grubb and Lazerson, above n 72, 78.

Representation of Children in Democracy 63 Children are regarded as part of a family that bears primary responsibility for assuring their needs. This is reflected in both domestic legal frameworks74 and international law75 and results in a sense among parents that they merely have a duty to ensure that the socio-economic needs of their own children are met. This reduces children’s issues to matters of private rather than public concern, and may well translate into a reluctance on the part of parents or adult society more generally to represent the interests of children generally in the law- and policy-making processes. Finally, even where parents are prepared to vote so as to forward children’s interests while their children are still young, this ‘parental solicitude’ may disappear once their own offspring reach majority. On a related note, there is evidence that as people (parents or otherwise) age, their willingness to vote in favour of measures that would forward children’s socio-economic interests may decrease. For instance, Maslow-Cohen cites a poll conducted in the United States by the Gallup organisation in 1983, asking whether people would vote to raise taxes for their local schools if the school board were to make a request. Those polled who were younger than age 50 were evenly split in their response; those older than 50 were opposed (62 to 28 per cent).76 I cannot prove conclusively that parents do not vote so as to bring the interests of children in general to bear in the political policy-making forum and, indeed, it is not necessary for me to do so. The widespread indifference and inertia of incumbent and aspiring elected representatives in many countries towards children’s issues indicate that politicians do not regard such questions as vote-catching. Considering that parents make up a significant proportion of the electorate, the relative absence of child rights-related issues from political party manifestos worldwide must surely indicate that politicians do not feel pressure from voting parents to bring about improvements in the situation of children. If, however, parents do vote in such a way as to ensure that children in general are represented in the democratic process, this does not necessarily mean that children’s representation by parents will be effective. Even if we assume that those parents who reside with children vote in their interest, children may still be substantially underrepresented overall where the number of voters who can be presumed to vote to forward children’s

74 See, eg Azerbaijani Constitution, art 17(II); Bulgarian Constitution, art 47(1); Constitution of Chad, art 38; Democratic Republic of Congo Constitution, art 40; Ghanaian Constitution, art 28; and Irish Constitution, art 42. 75 Eg CRC, Art 18 states that parents or, as the case may be, legal guardians have the primary responsibility for the upbringing and development of the child. 76 Cited in Maslow Cohen, above n 1, 2245. In the words of Maslow Cohen, ‘[p]erhaps the AARP [American Association of Retired Persons] and other interest group facilitators have done their job too well. Or perhaps people in mid-life are tired of the claims of children—their own and everyone else’s’ (ibid).

64 Children and Democracy socio-economic interests (ie generally parents) is smaller than or similar to the number of voters not doing so.77 Having dealt with parents I will now move on to consider the representation of children by other adults in society (or society in general).

Representation of Children by Adults Generally It has been asserted that: Every rights movement has had powerful help from the outside in addition to the heroes who have arisen from within the oppressed groups. The children’s rights movement differs only in that, thus far, rights are claimed, fought for and administered primarily by those outside of that group, by adults. But all adults were once members of that group and can legitimately claim representation.78

Colin Wringe has pointed out that, when it comes to meeting the needs of others, there will always be other, more pressing priorities in a free society of rational individuals until the provision for need brings some tangible advantage to the provider. This might be some crude material advantage like economic return, political influence or social approval, or some more subtle benefit such as the easing of a tender conscience.79 This comment may be extended to include the catering for children’s need through representation of children’s interests by adults in majority decision-making processes. In her critique of the treatment of children under US law, Wendy Fitzgerald points out that adults ‘retrieve children’s issues from the private realm of family life when responding to children’s needs also serves our own purposes as adults. As adults, we care about minors’ abortion and free speech rights because those rights bear upon our own freedoms as well’.80 Indeed, as Minow highlights, adults invoke the

77 In a US context, Jane Rutherford has pointed out that in an average US congressional district in 1997, parents and the children who live with them comprised over two-thirds of the people but controlled only just over half the votes (J Rutherford, ‘One Child, One Vote: Proxies for Parents’ (1998) 82 Minnesota Law Review 1463, 1465–66). In contrast, adults not living with children comprised less than one-third of the people but controlled nearly half the votes. As a result, when the pie is divided, children were dramatically underrepresented in the political process (ibid at 1466). Presumably this lack of representation will be even more aggravated where children do not have parents (regardless of whether they live with them or not) who vote to forward their interests. 78 A McGillivray, ‘Why Children Do Have Equal Rights: In Reply to Laura Purdy’ (1994) 2 International Journal of Children’s Rights 243, 253–54. 79 C Wringe, ‘Liberal Individualism, Welfare Rights and the Right to Education’ in M Freeman and P Veerman (eds), The Ideologies of Children’s Rights (Dordrecht, Martinus Nijhoff Publishers, 1991) 191, 194. Children cannot form part of this ‘society of rational individuals’ as their lack of autonomy renders them neither free nor equal, both of which are prerequisites for membership of this entity. 80 Fitzgerald, above n 59, 14–15.

Representation of Children in Democracy 65 interests of children on divisive social issues in order to wage their own battles with each other.81 A recent European example is the debate (and litigation) in numerous countries centring on children’s manifestation of their civil and political right to religious expression through the wearing of religious clothing and symbols.82 Much of the surrounding societal and political discussion is not concerned with these questions as issues of children’s rights per se. Rather, it is focussed on the claims of different adult interest groups with strongly conflicting views on the role of religion in public life and the educational context. Children in these situations can be (and frequently are) merely treated as proxies for the interests of those adult factions, rather than as independent bearers of the right to freedom of religion. In short, unless adults gain from the vindication of children’s interests, they may not ensure that such interests are voiced/represented in the legislative or policy-making process. There is an additional problem with adults representing children. While we may argue that adults share the same socio-economic interests as children (eg in health, shelter, social security), some of these shared interests may be of differing importance to the two groups. As stated in Chapter 1, children are less capable of supporting themselves than adults are. A child would, therefore, arguably be most concerned that adults represent their interest in ensuring that the state provides the goods and services necessary for their survival. However, adults may regard other child-interest-related issues as more pressing as they have greater implications for the interests of adults (for instance, the reproductive health rights of minors). In addition, some adults may prefer to advocate for some rights of children, while ignoring others. Thus, even where adults do represent children’s interests, they may not represent all of these interests or accord the relative priority to different interests that children themselves would. There have been a number of interesting recent developments in which children’s advocates have directly appealed to voters to ensure the representation of children’s rights issues. In the 2009 Indian general election, the NGO Children’s Rights and You ran a campaign urging voters to make child rights a priority by using their vote to ensure government accountability for

81 M Minow, ‘Whatever Happened to Children’s Rights?’ (1995) 80 Minnesota Law Review 267, 289. Minow makes the point that there are many instances in which the topic of children’s rights constitutes only a superficial frame for what more fairly is a larger national controversy with little opportunity to put children’s interests into the picture (ibid 289–90.) 82 See, eg R (on the application of Begum, by her litigation friend, Rahman) v Headteacher and Governors of Denbigh High School [2006] UKHL 15, in which the UK House of Lords held that a school’s refusal to allow the applicant, a Muslim school-girl, to wear a jilbab did not constitute a violation of her right to manifest her religious belief by her dress under Art 9 of the European Convention on Human Rights.

66 Children and Democracy actualising the rights of children.83 The NGO did the same in relation to a number of state elections. It is unclear what impact (if any) this campaign ultimately had in terms of election outcomes but it provides a useful example of an effort to heighten adult voters’ awareness of the importance of ensuring that children’s rights issues are advanced through adult voting. It also contributes to countering the relative ‘invisibility’ of children in political manifestos highlighted above. Voting on child-related issues is not, of course, the only way by which adults in general may ensure that children’s socio-economic interests are forwarded through majoritarian decision-making processes. There are many groups of adults who campaign on issues that will positively impact on the enjoyment of socio-economic rights by children. Such groups include women’s groups, trade unions and other organisations of professionals. One such issue is childcare. While an improved childcare system would certainly provide benefits to children in many countries (eg the direct benefit of a superior quality of care than they currently enjoy under government childcare schemes, and the indirect benefit of a higher standard of living due to the improved employment prospects of their parents), it is important to note that in this context—as with many other policy issues that impact directly on children—it is frequently agendas and interests other than children’s needs and rights that fuel and define childcare campaigns.84 However beneficial adults’ self-interested goals are to children, they are by no means identical to children’s own individual interests. Problematically from a children’s rights perspective, lobby or interest groups for adults may only address children’s issues or purport to represent children where the needs of children provide support to the ends of the group. Therefore, where children’s interests diverge from or threaten those of adults, they will not be effectively represented. Furthermore, in campaigns run by adults, which aim to forward the interests of both children and adults, children’s interests are likely to be subordinated to those of adults because the adults running the campaigns may be expected to accord greater priority to their own interests. Finally, many groups who claim to ‘speak for’ children lack the same claim to representativeness that other groups campaigning in the policymaking process (for instance, trade unions) would have. There is no formal criteria for determining the representativeness of such groups and they may have little claim to authority over their alleged ‘support base’ of children.

83 Children’s Rights and You, ‘This elections: stand up for children!’, Press Release, 13 April 2009. 84 N Hayes, Children’s Rights: Whose Right? A Review of Child Policy Development in Ireland (Dublin, The Policy Institute, 2002) 30. In the case of childcare, relevant adult groups include women’s rights advocates, trade unions, employers, teachers, childcare providers and working parents.

Representation of Children in Democracy 67 This should be borne in mind when considering whether such groups should be considered as representing children’s interests. Furthermore, there may, in fact, be significant benefits to adults who seek to advance children’s issues. In the context of facilitating child participation, Tisdall has highlighted that adults, and particularly NGOs, gain from facilitating child participation in terms of funding streams, meeting performance indicators, enhanced media access and relationships with policy-makers.85 This will frequently also be true of situations in which NGOs (or, indeed, intergovernmental organisations (IGOs)) seek to advance children’s rights issues more generally. Nor can it be assumed that adult-led groups working to forward children’s rights will necessarily give effect to the views or wishes of children about such rights. Indeed, there have been instances in which adult-led organisations have adopted a very different stance on high-profile children’s rights issues than that preferred by children-led organisations or individual children. One example is the divergence in the views and aims of working children and those of the international campaign to eradicate child labour, which will be discussed below in the context of child lobby groups. Of course, there are exceptions to my claims about the inadequacy of adults representing children in democracy. It would be overstating the case to dismiss every attempt of an adult pressure or lobby group to bring about an improvement in children’s socio-economic conditions as being based largely or entirely on adult self-interest. Numerous NGOs and other organisations work to advance children’s socio-economic rights, ensuring that children’s views on poverty, survival and other socio-economic rightsrelated issues are taken into account and form part of all their submissions to decision-makers involved in the relevant areas of policy, law reform and service delivery reform. It is important to note, however, that even when adults are open to representing children’s views and priorities, there may be problems with the processes adopted to determine such views and the presentation of the outcomes thereof in terms of their ability to reflect the views of children correctly.86 For instance, while such processes may be more effective and more respectful to children, they may not focus adequately on the interpretation of what children say vis-à-vis a particular issue in order to determine what they mean.87 In addition, there is a notable difference between seeking and advancing children’s views in relation to a particular issue addressed by 85 K Tisdall, ‘Is the Honeymoon Over? Children and Young People’s Participation in Public Decision-Making’ (2008) 16 International Journal of Children’s Rights 419, 427. 86 See, eg J Hart, ‘Children’s Participation and International Development: Attending to the Political’ (2008) 16 International Journal of Children’s Rights 407, 414, where the author raises issues with regard to both child participation processes and the presentation of the outcomes of such processes. 87 For more on this, see R Sinclair, ‘Participation in Practice: Making it Meaningful, Effective and Sustainable’ (2004) 18 Children and Society 106.

68 Children and Democracy an adult-led advocacy organisation and having children playing directive roles as members of the governance structures of such bodies. We will return to the issue of child participation below. At this point, it is sufficient to note that attempts to include children in procedures for setting the agenda for non-child-led advocacy groups helps to assuage one of the problems that arises even in relation to representation of children by altruistic adult-led groups who are primarily concerned with children: at the end of the day, it is adults that set the agenda for such groups, and their perception of children’s interests and the priority to accord to each may differ quite significantly from that of children. A negative slant could undoubtedly be put on any adult attempt to represent children’s interests. One might claim that efforts to reduce child poverty are based as much on the interests of adults as on those of children— children may represent a kind of investment or insurance policy to adults, of which the returns, though deferred for a few years, will eventually be paid in the form of economic aid provided by future productive adults, for instance, through support for pension plans.88 Indeed, such a view of children arguably underpinned the German Federal Constitutional Court’s 2001 decision, 1 BvR 2014/95.89 Here, the Court held that children had to be regarded as ‘contributions in kind’ to the social insurance scheme under challenge, constitutive for its continued existence when, as adults, they subsequently pay contributions to finance the care benefits received by the then-old generation. The Court found that a similar insurance premium for those with and without children led to a recognisable imbalance between the total contribution of parents (child-rearing and monetary contribution) and the exclusively monetary contribution of the childless. In finding the existing norms unconstitutional,90 the Court concluded that future arrangements must give credit to parents over the course of the childrearing period. Alternatively, it has been suggested that adult efforts to represent children’s interests may be viewed as rooted in adult self-interest in producing from childhood adults who will not require welfare benefits and who will engage constructively in democracy.91 I dismiss both this claim and the ‘insurance policy’ argument as excessively cynical. If adult lobbyists 88 Adapted from J Blustein, ‘Child Rearing and Family Interests’ in O O’Neill and W Ruddick (eds), Having Children: Philosophical and Legal Reflections on Parenthood (New York, Oxford University Press, 1979) 115, 118. 89 1 BvR 2014/95 of 3 April 2001. Details of this case are taken from K Hinrichs, ‘Do the Old Exploit the Young? Is Enfranchising Children a Good Idea?’ (2002) 43(1) European Journal of Sociology 35, 55. 90 The scheme was found to violate the rights to equality before the law (art 3), the right of the family to special protection of the state (art 6(1)) and the principles of law and of the social state guaranteed under the German Constitution. 91 W Fitzgerald, ‘Stories of Child Outlaws: On Child Heroism and Adult Power in Juvenile Justice’ (1996) Wisconsin Law Review 495 n 26.

Representation of Children in Democracy 69 were genuinely primarily motivated by an interest in ensuring their own pension plans, they would be better off pursuing other more effective, or rather direct, ways of doing so (for instance, by lobbying the government to reduce expenditure on children in order to increase state funding available for pension plans). One might argue that, if the result of lobbying is beneficial to children’s interests, then the motive of adults is not really relevant. However, motive has to be taken into account as it is pertinent to our evaluation of whether adults genuinely attempt to ensure children’s interests are represented in law- and policy-making. If adults are entirely motivated by self-interest in lobbying, then they cannot be presumed to act to ensure the representation and protection of children’s interests in democracy where this does not serve the adult’s own interests. In conclusion, in the absence of a particular concern for children (which most adults may not share) there seems little incentive for adults to form lobby groups to ensure representation of children. If the individuals to be served wield few votes (in children’s case, none), those who might organise on those individuals’ behalf have limited incentive and capacity to serve them.92

Ensuring Virtual Representation Through Sympathy or Empathy Virtual representation may occur in situations other than where there is a ‘communion of interests and sympathy in feelings and desires’. It is arguable that where there is a sufficient sense of empathy with, or sympathy for, children, enfranchised adults will vote so as to ensure children’s interests are effectively represented. At first glance, this would seem to be particularly true in relation to parents. The fact that all adults once were children would appear to suggest that they will have a greater insight into the position of, and empathy with, children than they would in relation to socially disadvantaged groups of which not all adults will have been members (eg women, immigrants). However, virtual representation based on ‘empathy’ or ‘sympathy’ is likely to be limited in much the same way that virtual representation based on a ‘communion of interests’ is; that is, to situations in which children are perceived as non-threatening and where those who empathise do not have a competing interest in the social goods necessary to vindicate children’s rights. Such empathy is likely to be overridden in situations in which those who are empathising have interests that would not be served by acting on that empathy. In addition, the fact that all adults have been children does

92

Rutherford, above n 77, 1495.

70 Children and Democracy not mean that they have all been socio-economically deprived children, thus it cannot be presumed that they will have any particular empathy with such children, or any insight in relation to their socio-economic interests that need to be represented in democratic processes.93 Any effective system of representation of children cannot be exclusively dependent on ‘sympathy’ or ‘empathy’. This would only lead to representation of children in limited circumstances and would not provide for those groups of children who are unlikely to generate the widespread sympathy or empathy amongst voting adults required to ensure that their interests are represented in democratic processes: adolescent rapists living in appalling prison conditions might be one example. If ‘sympathy’ were sufficient to ensure that children’s material needs were met, there would arguably be very limited call for children to have socio-economic rights at all. Such rights would not be necessary, as parental and adult sympathy, empathy or affection would ensure that children’s socio-economic needs were met.94 Claims about the lack of necessity for children’s rights have been criticised for being premised on a false, golden view of the life-experiences of children and for idealising adult–child relations by emphasising that adults (and parents in particular) always have the best interests of children at heart.95 The same critiques may be levelled at the presumptions underlying the claim that sympathy or empathy will ensure effective virtual representation of children. It may be supposed that parents and others sympathise or empathise with children as much now as ever before. However, it is clear from the conditions experienced by many children that this has not resulted in effective protection and vindication of children’s socio-economic interests in democracy. Ultimately, it is the current situation, in which adult and parental sympathy or empathy for children may be presumed to exist but 93 Obviously this argument is weaker in relation to developing countries where it can be assumed that many voting adults can indeed empathise with poor children due to having experienced similar conditions in childhood. 94 For more on this, see M Freeman, ‘Taking Children’s Rights More Seriously’ in P Alston, S Parker and J Seymour (eds), Children, Rights and the Law (Oxford, Clarendon Press, 1992) 52; M Freeman, ‘The Limits of Children’s Rights’ in M Freeman, The Moral Status of Children, Essays on the Rights of the Child (London, Kluwer Law International, 1997) 83, 84–87; McGillivray, above n 78; Onora O’Neill concedes the political point of the rhetoric of children’s rights (O O’Neill, ‘Children’s Rights and Children’s Lives’ in P Alston, S Parker and J Seymour (eds), Children, Rights and the Law (Oxford, Clarendon Press, 1992) 24, 37. She argues, however, that children have both less need and less capacity to exert ‘pressure from below’, and less potential for using the rhetoric of rights as a political instrument (ibid 39). For an excellent defence of the need for rights as fallbacks to underpin social relationships, which are constituted on other terms, see J Waldron, ‘When Justice Replaces Affection: The Need for Rights’ in Liberal Rights, Collected Papers 1981–91 (Cambridge, Cambridge University Press, 1993) 370. His arguments may be taken and used to justify children’s socio-economic rights as ‘fallbacks’ which come into play where parental affection fails to ensure that children’s needs are not met. 95 Freeman, ‘Taking Children’s Rights More Seriously’, above n 94, 55–56.

Other Means of Bringing Children’s Interests to Bear in Democracy 71 effective representation of children’s socio-economic interests in democratic decision-making processes clearly does not (as demonstrated by the appalling socio-economic conditions experienced by children in many developed and developing countries) that provides the most convincing argument against the claim that a ‘sympathy in feeling and desires’ will be sufficient to ensure that children are represented within the political system by other enfranchised groups. So far, I have argued that the representation of children’s interests by adults in society is insufficient as the interests of the former will generally be subordinated to those of the latter. Furthermore, adults cannot be relied upon to forward those interests of children that do not offer them a benefit or overlap with their own interests in some way in the political system. It is now time to examine whether children are represented in the democratic system by other means, thus ensuring their interests are taken into account and rendering them ineligible for judicial protection under a broad representation-reinforcing process theory of judicial review. OTHER MEANS OF BRINGING CHILDREN’S INTERESTS TO BEAR IN DEMOCRACY

My examination of other mechanisms by which children’s interests might be represented in democratic law- or policy-making processes will centre on child lobby or advocacy groups (that is, groups made up of children lobbying or advocating for children’s interests) and ombudspersons. I will also address a potential tool for ensuring the representation of children’s interests in law- and policy-making that has had an ever-increasing profile following the entry into force of the CRC: children’s participation rights. Children are a shrinking group in many societies due to a fall-off in birth rates. As mentioned in Chapter 1, this decrease in the size of the ‘child’ group is accompanied by a relative increase in the number of middle-aged and older persons. Even in developing countries where the proportion of older persons is considerably lower than that of younger persons the number of older people is growing rapidly96 (albeit that Europe is still the ‘oldest’ world region and sub-Saharan Africa the ‘youngest’).97 In fewer than 10 years, people aged 65 and over are expected to outnumber children under the age of five for the first time.98 The reduction in the number of children, as well as in the proportion that children make up of society as 96 According to recent research commissioned by the US Institute of Aging and carried out by the US Census Bureau, the current rate of growth of the older population in developing countries is more than double that in developed countries (K Kinsella and W He, US Census Bureau, An Aging World: 2008 (US Government Printing Office, Washington, DC, 2009) 10). 97 Ibid 11. 98 Ibid 7.

72 Children and Democracy a whole, will have a significant impact on their ability to ensure their own indirect representation: the smaller a minority they become, the less power and potential they will have as a group in society to exert influence on the political process. Thus, the argument goes, the (relatively) ‘short-term’ interests of the elderly will be advanced at the polls to the disadvantage of the ‘longer-term’ interests of young people, and of children, in particular. A number of commentators have argued that the growing political power of older persons in many countries and the resultant intergenerational inequities should serve as a justification for altering the electoral system in one way or another. Van Parijs has considered a range of possible measures, including amending the franchise, the introduction of plural voting for persons under a certain age, the adoption of a ‘family vote’ system, and compulsory voting to address lower voting rates amongst lower age-groups.99 The argument that parents should be given proxy votes on behalf of their children has received particular attention from commentators.100 As I will discuss further below, my aim in this work is not to propose or endorse particular amendments to electoral systems so as to assuage the growing relative powerlessness of children (although I am not necessarily opposed to such). It is crucial, however, to acknowledge that the combination of how electoral systems currently operate in many countries, together with a ‘greying’ demographic, means children are often a shrinking minority who enjoy low to non-existent levels of direct representation and questionable levels of indirect representation. This should be borne in mind in discussions about representation of children and the willingness and the capacity of the elected branches of government to give effect to their socio-economic rights. Furthermore, even key bodies that have a potential role in bringing children’s interests to bear on democratic decision-making—the youth wings of political parties—seem unlikely to be able to counteract the subordination of such interests to those of older constituents. Intra-party campaigning by youth wings might result in children’s interests being placed on the agenda of their political party and its elected representatives; this, in turn, might influence the positions adopted by the political party in law- and policy-making. It should, however, be borne in mind that there is generally a minimum (often mid-teenage) age-limit for joining a youth wing, while the ‘cut-off’ maximum age-limit is often well beyond the age of enfranchisement. Therefore, such bodies may tend to focus primarily

99 See P van Parijs, ‘The Disfranchisement of the Elderly, and Other Attempts to Secure Intergenerational Justice’ (1999) 27 Philosophy and Public Affairs 292. 100 Rutherford justifies doing so in terms of ensuring the virtual representation of children (Rutherford, above n 77, 1495–526). For a claim that extending the franchise would neither be a promising solution to addressing growing child poverty and intergenerational inequities nor be required to improve the quality of democratic representation, see Hinrichs, above n 89.

Other Means of Bringing Children’s Interests to Bear in Democracy 73 on the interests of older children and young adults, to the exclusion of the interests of younger children, resulting in limited representation for children as a group as a whole.

Child Lobby Groups Adult lobby groups for children have been discussed above. I turn now to the issue of lobby or self-advocacy groups formed for children by children and the ability of such pressure groups to ensure that children are indirectly represented in democracy. A lack of resources and, depending on their age, a lack of organising abilities are reasons that are often cited for the alleged incapacity of children to organise themselves into an effective, influential lobby or pressure group.101 Indeed, it is arguably the least powerful of children (and hence those at greatest risk of socio-economic rights violations) that are least likely to be able to form effective self-advocacy groups due to factors such as poverty, social and political exclusion and low levels of education. The same issues also auger against the possibility of children effectively engaging in policy networks.102 Furthermore, since the ranks of childhood are continuously depleted by entry into adult life, it has been claimed that no ‘children’s movement’ on the model of the women’s movement or civil rights movement can be envisaged.103 There are groups of children (generally older adolescents) to whom some of these claims may not apply, as testified to by the growing body of research focussed on children as public political actors.104 However, the issue of the transience of childhood will apply to all. One notable development with regard to child lobby groups is the growth in working children’s movements, organisations or unions over the last two decades. While frequently adult-initiated and adult-supported, these groups of ‘self-organising children’ are child-led, with participants adopting child-directed governance structures.105 The aims of such groups vary from improved working conditions for children and higher standards of education linked to vocations, to broader social and environmental

101

See, eg Rutherford, above n 77, 1494. For a brief discussion of children and policy networks literature, see K Tisdall and J Davis, ‘Making a Difference? Bringing Children’s and Young People’s Views into Policymaking’ (2004) 18(2) Children and Society 131. 103 See O O’Neill, Constructions of Reason: Explorations of Kant’s Practical Philosophy (Cambridge, Cambridge University Press, 1989) 203. 104 See the literature discussed below. 105 For more on groups of working children generally, see M Liebel, ‘Working Children as Social Subjects: The Contribution of Working Children’s Organizations to Social Transformations’ (2003) (10)3 Childhood 265. 102

74 Children and Democracy issues extending beyond the labour context.106 While not necessarily always self-consciously styled as ‘political movements’, the aims of many such groups have clear implications for the outputs of democratic decisionmaking in the form of law and policy relating to children. The activities of such groups often entail child participation in political space. One serious obstacle to the success of such groups in achieving their aims is moves by adult-led organisations such as the ILO to secure the abolition or elimination of child labour. Intermizzi and Milne have highlighted that working children’s groups tend to ask for greater protection of working children, rather than speak in terms of the elimination of child labour. However, they argue, these views have been neglected and subordinated by international (adult) opponents to child labour.107 While those seeking the abolition or elimination of child labour are undoubtedly primarily concerned about children’s rights (albeit, not the child’s right to work), serious questions must be asked about whether such ‘rights-based’ campaigns have taken adequate notice of the views and interests of those children that will be directly impacted by the success of such campaigns. Evidence of this is provided by a statement by the Latin American and Caribbean Working Children and Adolescents Movement (MOLACNAT) which was presented at the May 2010 Global Child Labour Conference in the Hague. In this statement, MOLACNAT protested the disrespect shown to them by the organisers of the Hague Conference by neglecting to invite them to participate or, indeed, even informing them that it would take place.108 The statement highlighted that: [t]he exclusive attendance by adults, most of whom are quite distant from the realities of our lives, once again confirms that the approach taken to working children and adolescents continues to be adult-centred and child and adolescent participation is relegated to lofty intentions and legal texts.109

A more appropriate, child-centric and balanced approach to the issue is that adopted by the Committee on the Rights of the Child (ComRC) in its General Comment No 12 on the Child’s Right to be Heard. Rather than simply stating that children should not work, the ComRC highlighted that

106 See, eg the discussion of the different campaigns conducted by working children’s unions in India discussed in A Rampal, ‘Scaffolded Participation of Children: Perspectives from India’ (2008) 16 International Journal of Children’s Rights 313, 316. 107 A Invernizzi and B Milne, ‘Are Children Entitled to Contribute to International Policy Making? A Critical View of Children’s Participation in the International Campaign for the Elimination of Child Labour’ (2002) 10 International Journal of Children’s Rights 403. 108 Statement by the Latin American and Caribbean Working Children and Adolescents Movement (MOLACNAT), presented at the Global Child Labour Conference in the Hague, 10–11 May 2010. 109 Ibid.

Other Means of Bringing Children’s Interests to Bear in Democracy 75 working children have a right to be protected by law against exploitation.110 It recommended that children should be heard when worksites and conditions of work are examined by inspectors investigating the implementation of labour laws, when labour laws are drafted or when the enforcement of laws is considered and evaluated.111 The Committee has also emphasised that child workers should be heard and included in the design of a solution to child labour, ‘which respects the economic and socio-structural constraints as well as the cultural context under which these children work’.112 This emphasis on the views of working children with regard to resolving the problem of child labour is very different to the ‘top-down’ approach employed by many international campaigners on the issue—and much more in conformity with the spirit and purpose of the CRC. Ultimately, the major obstacle to children ensuring indirect representation of their interests by the activities of a ‘child lobby’ is not simply the limited capacity of children to form such a group—indeed, the existence of groups such as those of working children does much to counter perceptions of such incapacity. Rather, it is the fact that where children’s aims collide with those of other more influential groups in society, they will lose. In other words, the parameters of the effectiveness of a children’s lobby will be defined by the extent to which its aims do not threaten the interests (or, as the example above demonstrates, the views) of other societal groups.

Ombudspersons In many jurisdictions there is an ombudsperson or human rights commissioner for children who may help to ensure children’s interests are taken into account and vindicated in the democratic process. The fact that most children have no vote and therefore cannot play a meaningful role in the political process that determines governments’ response to human rights is one of the justifications given by the ComRC for ensuring that children’s rights are given special attention in the context of national human rights institutions.113 An ombudsperson may tentatively be defined as an investigator or a neutral fact-finder of children’s legitimate problems and complaints114 and

110 ComRC, General Comment No 12 on the Right of the Child to be Heard, UN Doc CRC/C/GC/12 (2009) para 117. 111 Ibid para 117. 112 Ibid para 116. 113 ComRC, General Comment No 2 on the Role of Independent National Human Rights Institutions in the Promotion and Protection of the Rights of the Child, UN Doc CRC/ GC/2002/2 (2002) para 5. 114 F Martin, ‘Towards the Establishment of a Children’s Ombudsman: Champion of Children’s Rights or Unnecessary Interloper?’ (1998) 1 Irish Journal of Family Law 8, 9.

76 Children and Democracy generally has the power to investigate complaints, criticise and publicise, but not to reverse administrative action or revoke administrative decisions.115 Depending on her mandate and the resources available to her, an ombudsperson may be able to ensure that government policies and legislation are child-sensitive. She may also play a key role in highlighting and delineating the implications of particular government policies to politicians, the electorate and the media. In particular, strategic use of the media to highlight government failings in relation to a particular issue may exert pressure on elected representatives to resolve the problem identified by the ombudsperson. However, a lack of any real power (in terms of being able to make legally binding decisions or to require the legislature or executive to take into account or vindicate children’s socio-economic rights in their law- or policy-making) means that an ombudsperson may only have a limited capacity to ensure effective representation for children. Indeed, the statement by the first global meeting of independent human rights institutions for children to the UN General Assembly Special Session on Children in May 2002 made it clear that independent children’s rights commissioners do not regard themselves as being able to do much more than ‘ensure a children’s perspective in law and policy development and to increase respect for children and their views’.116 Thus, there is a limited amount of pressure that they can bring to bear on the political process and on lawand policy-making. In some jurisdictions, ombudspersons may take legal actions before national and other courts. One jurisdiction which has seen considerably juridical activity of this kind by ombudspersons is Argentina, where there are a number of provincial Children’s Public Defenders (Defensorías de menores) or ombudspersons, some of whom have brought litigation in relation to children’s socio-economic rights.117 At a national level, Act No 26.061 of 2005 on Comprehensive Protection of the Rights of Children

115 MG Flekkøy, ‘The Ombudsman for Children: Conception and Developments’ in B Franklin (ed), The New Handbook of Children’s Rights: Comparative Policy and Practice (London, Routledge, 2002), 404, 404. For a list of the types of activities which the ComRC believes that national human rights institutions should carry out in relation to the implementation of children’s rights in light of the general principles of the CRC, see ComRC, General Comment No 2, above n 113, para 19. 116 Statement to United Nations General Assembly Special Session on Children, First Global Meeting of Independent Human Rights Institutions for Children, 7 May 2002, available at www.unicef.org/specialsession/activities/ihri-stmnt.htm. 117 For two examples of litigation brought by the Child Defender in the Province of Neuquen centring on the child’s right to water, see Defensoría de Menores No 3 v Poder Ejecutivo Municipal s/acción de amparo, Expte 46–99, Neuquen Supreme Tribunal of Justice, 2 March 1999; and Menores Comunidad Paynemil s/accion de amparo, Expte 311-CA-1997, Neuquen Civil Court of Appeals Division II, 19 May 1997. For an English language acocunt of these cases, see T Kiefer et al, Legal Resources for the Right to Water and Sanitation: International and Regional Standards, 2nd edn (Geneva, Centre on Housing Rights and Eviction, 2008) 314.

Other Means of Bringing Children’s Interests to Bear in Democracy 77 and Adolescents, makes provision for a national Defender of the Rights of Children and Adolescents, who is explicitly empowered to bring actions to protect the rights of children and adolescents before any trial court, body or tribunal.118 However, although judicial actions brought by ombudsperson seeking the enforcement of children’s rights is a useful mechanism in terms of ensuring children’s rights are vindicated, it does not really ensure the representation of children in law- or policy-making, except inasmuch as the elected branches of government will have to take any resulting court decision into account in its future laws and policies.

The Role of Children’s Participation Rights Participation rights are one of the key potential vehicles for children with regard to the exercise of political power and the bringing to bear of their views and interests upon democracy.119 As Lister highlights, such rights are of particular significance for children and young people because they cannot express their voice through the ballot box.120 There has been much discussion of the participation rights of the child in recent years, most notably in the context of the CRC. Article 12 of the CRC arguably has the most potential of all the provisions of the CRC in terms of serving as a springboard for children to have input into democratic decisionmaking processes that affect them.121 I say ‘potential’ because, while the ComRC has focussed on the notion of children as active participants in society, it has not addressed to any great extent the concept of children as democratic citizens (in the sense of having the right to have a direct formal input into democratic decision-making processes in the way that enfranchised groups do). This issue of participation rights is particularly important with regard to poor children, given evidence that poverty both facilitates and constrains children’s agency; in his review of literature on children’s perspectives on poverty, Redmond highlights that a range of economic constraints compel children to make decisions that they might otherwise be able to avoid making, or not be allowed to make;122 however,

118 As of September 2009, the process of selection of the latter was still under way (Third and Fourth Periodic Reports of States Parties due in 2004: Argentina, UN Doc CRC/C/ ARG/3-4 (16 December 2009) para 67). 119 The arguments made in this section previously appeared in Nolan, above n 12. 120 Lister, above n 14, 704. 121 Other key provisions include the principle of the evolving capacities of the child (Art 5 CRC) and the rights to freedom of expression (Art 13), freedom of association and peaceful assembly (Art 15) and freedom of thought, conscience and religion (Art 14). 122 G Redmond, ‘Children as Actors: How Does the Child Perspectives Literature Treat Agency in the Context of Poverty?’ (2009) 8(4) Social Policy and Society 541, 544.

78 Children and Democracy the same constraints also limit children’s room for manoeuvre in other directions.123 Numerous justifications and aims have been proffered for children’s participation,124 with work in the area of child participation reflecting a consistent concern with the linkage between participation and the evolution/development of the child as a current and/or future citizen.125 Similarly, commentators on child participation demonstrate a preoccupation with the relationship between child participation and the enhancement of democracy (in terms of the functioning and/or outputs of the democratic system) including the strengthening of the child’s sense of, and interest in, participation in democracy and their own democratic citizenship.126 Naturally, participation does not simply arise in the context of democratic decision-making and it is clear that participation need not be ‘political’ in nature. Indeed, the political arena of participation may not even be that which is of greatest or most immediate importance to children in terms of the realisation of their socio-economic rights on a day-to-day basis, in light of the way that children’s socio-economic rights are generally either provided by, or mediated through, their family unit. This is particularly evident in areas such as housing and social security. Where the right to education is at issue, the key forum for child participation may be the school or the educational context more broadly. However, bearing in mind that the arguments being made in this section relate to the position of children with regard to democratic law- and policy-making processes,127 it is logical

123

Ibid. Considerable controversy surrounds the question of what constitutes participation, with commentators such as Hart, Lansdown, Treseder, Shier and Arnstein proffering different typologies and models of child participation. (See R Hart, Children’s Participation: From Tokenism to Citizenship (Geneva, UNICEF International Child Development Centre, 1992); Lansdown, above n 22; and P Treseder, Empowering Children and Young People Training Manual: Promoting Involvement in Decision-making (London, Save the Children, 1997) 7; H Shier, ‘Pathways to Participation: Openings, Opportunities and Obligations—A New Model for Enhancing Children’s Participation in Decision-making, in Line with Article 12(1) of the United Nations Convention on the Rights of the Child’ (2001) 15(2) Children and Society 107; S Arnstein, ‘A Ladder of Citizen Participation’ (1969) 35(4) Journal of the American Institute of Planners 216). As Tisdall and Davis observe, ‘“Participation activities” differ in terms of their aims, structures and who is involved’ (Tisdall and Davis, above n 102, 131–32). A key issue, however, is the extent to which child participation entails adults being directed by, or acting upon, children’s input and the degree to which (if at all) it involves power being transferred from adults to children. 125 For a discussion of the numerous aims of child participation proffered by various commentators, see N Thomas, ‘Towards a Theory of Children’s Participation’ (2007) 15 International Journal of Children’s Rights 199, 200. 126 See, eg Lansdown, above n 22, 6–7. 127 The issue of the participation of the child in legal proceedings affecting their socio-economic rights will be dealt with in Chapter 6. 124

Other Means of Bringing Children’s Interests to Bear in Democracy 79 that the democratic citizenship-related ‘aims of participation’ should be our central focus here.128 In its most extensive statement on the child’s right to participation prior to its General Comment No 12 on the Right of the Child to be Heard,129 the ComRC urged states to guarantee systematic inclusion of the child’s right to participation in policy matters, as well as ensuring that child participation is taken into account in resource allocation.130 The Committee also stated that, where the best interests of large numbers of children are at stake, heads of institutions, authorities or governmental bodies should provide opportunities to hear the concerned children from such undefined groups and to give their views due weight when they plan actions, including legislative decisions, which directly or indirectly affect children.131 The Committee is thus clearly concerned with ensuring child participation in a broad range of legislative, executive and administrative processes and contexts. Elsewhere, the ComRC has spoken about the need for ‘consultation’ with children to be meaningful and for their views to be given due weight: ‘appearing to “listen” to children is relatively unchallenging; giving due weight to their views requires real change’.132 According to the Committee, the involvement of, and consultation with, children must also avoid being tokenistic and aim to ascertain representative views.133 Consultation or merely listening to children, however, is very different in nature from true participation. While consultation entails the eliciting of information from children which is subsequently applied by adult policy-makers, the latter entails the involvement of children in the decision-making of policy-makers. It is clear, however, that the ComRC is prepared to describe consultative processes as ‘participation’.134 Laura Lundy has argued that successful implementation of Article 12 requires consideration of the implications of four separate factors: Space,

128 That is not to suggest that the public political and the private spheres are not strongly interrelated (or that the dividing lines between those spheres are clear-cut or logical). For instance, public laws and policies ultimately define the parameters of parental provision or mediation of socio-economic rights, and injustice within the private sphere in terms of participation or distribution of socio-economic goods may only be remediable through direct intervention by the public sphere of political action. 129 ComRC, General Comment No 12, above n 110. 130 ComRC, Day of General Discussion: The Right of the Child to be Heard, 29 September 2006, para 25, available at www2.ohchr.org/english/bodies/crc/docs/discussion/ Final_Recommendations_after_DGD.doc. 131 ComRC, General Comment No 12, above n 110, para 73. 132 ComRC, General Comment No 5 on General Measures of Implementation for the Convention on the Rights of the Child, UN Doc CRC/GC/2003/5 (2003) para 12. 133 Ibid. 134 For instance, the ComRC has described the term ‘participation’ as ‘used to describe ongoing processes, which include information-sharing and dialogue between children and adults based on mutual respect, and in which children can learn how their views and those of adults are taken into account and shape the outcome of such processes’ (ComRC, General Comment No 12, above n 110, para 3).

80 Children and Democracy Voice, Audience and Influence.135 In its work in this area, the Committee has been happy to address the issues of space (children must be given the opportunity to express a view), voice (children must be facilitated to express their views) and audience (the view must be listened to).136 It has engaged to a far lesser degree with the issue of influence; that is, the requirement that the child’s view must be acted upon, as appropriate.137 The ComRC has criticised the fact that the child’s rights to express her view on issues that affect her and to have those views duly ‘considered’ continues to be impeded by, amongst other things, political barriers.138 It has frequently exhorted states to conduct a regular review of the extent to which children participate in the development and evaluation of laws and policies affecting them and to evaluate the extent to which children’s views are taken into consideration, including their impact on relevant policies and programmes.139 However, the Committee has failed to adopt a detailed, convincing stance on the issue of child participation in law- and policymaking processes that affect them by outlining in detail how the views of children should be given ‘due weight’ in practice.140 For instance, the Committee has not suggested what weight should be accorded to children’s views in particular, concrete contexts or when balanced against the views of other, more powerful actors.141 More generally, in urging states parties to establish clear guidelines on how the views presented by children in such forums are taken into account by the formal political process and in policy-making,142 the ComRC has failed to outline a more direct participatory role for, or system of representation of, children in such processes which would result in their views being potentially determinative in relation to decision-making affecting their rights.143 Nor, despite being prepared to adopt quite an assertive stance with regard to age-limits in the contexts of labour144 legal majority145 and criminal 135 See L Lundy, ‘“Voice” is Not Enough: Conceptualizing Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33(6) British Educational Research Journal 927. 136 Ibid 933. 137 Ibid 933. 138 ComRC, General Comment No 12, above n 110, para 4. 139 See, eg ComRC, Concluding Observations: Mexico, UN Doc CRC/C/MEX/CO/3 (2006) para 28(d); ComRC, Concluding Observations: Uzbekistan, UN Doc CRC/C/UZB/CO/2 (2006) para 29(d). 140 See, eg ComRC’s statements on France, UN Doc CRC/C/FRA/CO/4 (2009) paras 39–40. 141 For reasons why the ComRC has failed to do so, see Nolan, above n 12, 776. 142 ComRC, General Comment No 12, above n 110, para 31. 143 I say ‘potentially’ here as, simply because one is afforded the opportunity to participate in democratic decision-making processes, that does not mean that one’s exercise of that opportunity will determine the decisions/actions of democratic majorities. 144 See, eg ComRCs statements in the context of considering states parties’ compliance with art 32(2) CRC in its concluding observations. 145 See, eg ComRC, Concluding Observations: Iran, UN Doc CRC/C/15/Add.254 (2005).

Other Means of Bringing Children’s Interests to Bear in Democracy 81 responsibility,146 has the Committee addressed the implications of Article 12 for voting ages other than to commend states for enacting lower voting ages.147 This is notwithstanding the Committee’s acknowledgement that ‘given that few States as yet have reduced the voting age below 18, there is all the more reason to ensure respect for the views of unenfranchised children in Government and Parliament’.148 The ComRC has highly praised ‘the growing number of local youth parliaments, municipal children’s councils and ad hoc consultations where children can voice their views in decision-making processes’, referring to these as ‘structures for formal representative participation in local government’.149 At the same time, it has criticised governmental failure to have regard to the outputs of such bodies and has acknowledged that, while one-off or regular events like child parliaments can be stimulating and raise general awareness, Article 12 requires consistent and ongoing arrangements.150 Unfortunately, in apparently regarding participation in such bodies as the zenith of child democratic participation, the Committee fails to engage properly with the fact that, while such bodies certainly serve as a platform for children to ‘make themselves heard’, they are unlikely to have a direct impact on law- or policy-making unless lobby groups or elected representatives subsequently take up the issues highlighted by child delegates during the course of parliamentary hearings. Thus, while children’s parliaments are commendable for enhancing children’s participation in public debate and (where properly publicised) for making decision-makers aware of children’s views and concerns, they do not necessarily result in an increase in children’s political power. In fact, it is highly questionable whether providing a child with an opportunity to express her views with regard to political decision-making that does not result in those views having an effective influence on such decision-making does, in fact, constitute ‘formal representative participation’, whatever the ComRC might suggest to the contrary. Indeed, while it may constitute ‘formal’ participation (in the sense of ‘going through the motions’), it seems highly unlikely to qualify as substantive or ‘effective’ participation (in the sense of children’s views being brought to bear on democracy). It is important to note that I am not arguing that children’s nonparticipation and non-representation in terms of democratic processes

146 See, eg ComRC General Comment No. 10 on Children’s Rights in Juvenile Justice, UN Doc, CRC/C/EC/10 (2007) para 32. 147 See, eg ComRC, Concluding Observations: Venezuela, UN Doc CRC/C/VEN/CO/2 (2007), where the Committee welcomed the fact that, following the Community Council Act, young adolescents can vote at municipal levels at the age of 15 (para 37). 148 ComRC, General Comment No 5, above n 132, para 12. 149 ComRC, General Comment No 12, above n 110, para 127. 150 ComRC, General Comment No 5, above n 132, para 12.

82 Children and Democracy would be automatically remedied by extending the vote to children.151 However, bearing in mind the centrality of the ‘right to vote’ to the countermajoritarian objection to judicial review which is the subject of Chapter 3, it is important to highlight that voting and democratic decision-making as they currently operate do not provide children with an engine to advance their rights and interests directly or effectively through the political system. Furthermore, unlike the view proffered by Bilchitz, I would argue strongly that it cannot simply be assumed that ‘a young child fails to experience a loss through not participating in the political system’.152 That said, merely extending the vote to children will not in and of itself bring about the societal, cultural and structural reform that is necessary to address the disadvantage and relative powerlessness experienced by children as a group in society.153 (Furthermore, bearing in mind that there is evidence that some groups of children do not wish to vote—or do not wish other children to vote154—extending the franchise to children might risk undermining children’s participation-related preferences.) Ultimately, even if there was universal suffrage of children, there would still be some who would not be able to vote (for instance, the very young). This is not to suggest that most children lack the competence to vote or should not be granted the right to vote—rather, it is simply a recognition that there will inevitably be some children for whom ‘voting’ will not serve as a mechanism by which to ensure participation in the decisions affecting them.155 151 Commentators have, however, presented strong moral arguments in favour of extending the vote to children, see, eg S Lecce, ‘Should Democracy Grow up? Children and Voting Rights’ (2009) 4 Intergenerational Justice Review 133 (exploring whether the disenfranchisement of children is morally defensible or, in fact, constitutes social injustice). 152 Bilchitz, above n 9, 109 n 30. According to Bilchitz, ‘the capacity of moral agents [who do not include young children] to deliberate and act rationally indicates that they do indeed have an important interest in being able to participate in the decision-making of their communities’ (at 109). While I would not disagree with the claim that ‘moral patients’ (as Bilchitz terms young children) may well not benefit from having the particular rights involved in participating in the political system, Bilchitz fails to adequately account for the need to accommodate young children and other moral patients within that system, merely stating that ‘it may be necessary to appoint representatives who act to protect [children’s] interests’. His use of the word ‘may’, however, suggests strongly that he does not regard representation of children in such processes as an imperative. Bearing in mind the implications that non-participation and non-representation may have for the realisation of children’s rights, Bilchitz’s theory is, at best, incomplete on this point. 153 For further discussion of Habermas, citizenship and children under democratic theory, see Kulynych, above n 26. 154 See, in an Irish context, the results of the National Youth Federation youth poll. Here, 51% of 17-year-olds polled felt that the voting age in Ireland should be lowered to 16, compared to 68% of 16-year-olds and 71% of 15-year-olds. Those who conducted the poll concluded that this result might be caused by the tendency of age-groups, particularly younger age groups, to seek certain rights and privileges over age-groups younger than themselves (National Youth Federation, National Youth Poll (Dublin, National Youth Federation, 2004). 155 That is not to suggest that voting will be possible for all adults, either. However, while all children go through a period in which they would not be able to exercise the right to vote, this is not necessarily the case for adults.

Other Reasons for Children’s Inability to Exert Indirect Influence 83 Nor am I suggesting that democratic decision-making processes as they stand will afford optimal participation even to those children who are able to exercise the vote. A number of commentators have argued convincingly that changes may need to be made to democratic decision-making processes (and, indeed, mechanisms and fora for involvement more generally) as they are currently constituted in order to render ‘democracy’ more inclusive.156 Thomas highlights that, if the challenge of children’s participation is to open up existing institutions to ‘the voices of children’, then it is necessary to ask how far those existing institutions have to change in order for this to happen.157 In making such changes from a child-centric perspective, account must be taken of Hinton’s observation that children’s ability to engage with government as active citizens is often prevented not only by structural obstacles but also by the subconscious biases that result from dominant understandings of childhood.158 Changes to democratic processes may not serve to ensure effective participation for excluded groups in the absence of a broader cultural shift in attitude towards members of those groups and the value to be accorded to their views. This is certainly true in the case of children, whose exclusion from direct participation in the democratic system is so profound. There also needs to be a careful interrogation of systems of participation for children in democracy to ensure that participation is effective—in terms of ensuring that it results in children’s views and interests being given effect in political decision-making—rather than being simply formal or tokenistic in nature. OTHER REASONS FOR CHILDREN’S INABILITY TO EXERT INDIRECT INFLUENCE ON DEMOCRATIC DECISION-MAKING PROCESSES

There are many numerically insignificant groups that exert a far greater influence on political policy-making and law-makers than can be accounted for in terms of the number of votes they wield. Often this can be attributed to the economic influence of such groups. An important contributory factor to the lack of indirect representation of children in democracy is their economic powerlessness. Children generally have far fewer financial resources than adults and are unlikely to be able to acquire more due to, amongst other things, legal limitations upon their ability to earn money. There are several such limitations, not all of which are state-condoned. The first restriction of children’s ability 156 See, eg Iris Marion Young, Inclusion and Democracy (Oxford, Oxford University Press, 2000). Young does not, however, expressly address the position of children in her work. 157 Thomas, above n 125, 207. 158 R Hinton, ‘Children’s Participation and Good Governance: Limitations of the Theoretical Literature’ (2008) 16 International Journal of Children’s Rights 285, 294.

84 Children and Democracy to earn money are regulations on child labour, which aim to remove children from the workforce in order to enable them to benefit from education and to protect them from economic exploitation. A less benevolent limitation on children’s earning power is the fact that their minority is often used as an excuse to pay children less than adults for work of equivalent value. Furthermore, children often do not have the same degree of control or freedom of choice regarding their assets as adults do. This is due to, amongst other things, their limited legal capacity in terms of contract and/or civil law generally. In addition, the resources available to children will vary greatly, with a large disparity between those of children from different socioeconomic backgrounds. Thus, those children who are most at risk of socioeconomic rights violations are likely to have far fewer resources available to them than their wealthier counterparts. Finally, and perhaps most importantly, while they are consumers and form a market at which marketing and advertising campaigns are increasingly being aimed,159 children (and particularly younger ones) may lack the knowledge, experience and judgment that is required in order to use the money they have in a strategic way.160 This developmental deficit is as strong a contributor to children’s economic powerlessness as is their fiscal deficit. It results in their failing to use the (generally limited) economic resources available to them to exert indirect influence on the political process in such a way as to turn themselves into a political or social force to be reckoned with. Another contributing factor to children’s limited ability to ensure their own indirect representation in the democratic process is their lack of control over the media. Children are effectively excluded from participating in media activities, apart from serving as the subject of news stories. As a result, the media rarely presents children’s issues from children’s perspective. An extensive body of research demonstrates that children are often portrayed by the media as problematic victims (potentially resulting in further stigmatisation and child disempowerment), or dangerous delinquents.161

159 Children may be regarded as constituting three markets: the current market spending of their money on their wants and needs; an influence market spending their parent’s money on their own wants and needs; and a future market for all goods and services. 160 Some argue that children may be more skilled about financial management than many might give them credit for. See eg M John, Children’s Rights and Power: Charging Up for a New Century (London, Jessica Kingsley Productions, 2003) 111, who cites research indicating that 20% of children in Scotland save some/all of their pocket money and that Scottish children have increasingly become far more sophisticated in charging for their services. However, the ability of children to save or manage pocket money responsibly on an individual basis does not necessarily translate into children as a group being capable of merging their relatively small financial resources and wielding this money in such a way as to influence democratic decision-making processes. 161 For a useful discussion of the media’s representation of children and relationships between the media, children and the CRC, see J Tobin, ‘Partners Worth Courting:

Other Reasons for Children’s Inability to Exert Indirect Influence 85 A growing number of studies highlight the shortcomings of the media’s approach to children and issues that affect their enjoyment of rights. In 2003, the Empowering Children and Media Project in South Africa revealed that of the 22,000 news items from 36 different media monitored and analysed from March to May 2003, only 6 per cent contained references to children.162 Children were quoted, directly or indirectly, in only 13 per cent of items on children.163 With regard to the stories on children reported by the media, 60 per cent were negative and 25 per cent represented children as victims. Clearly, this severely narrowed the representation of children.164 This restricted view of children was further aggravated by the fact that the numbers of children in the news did not reflect South Africa’s demographics.165 When asked about their presentation of children, media practitioners stated that they saw no reason to reflect the views of children as they do not form part of the ‘economically active population’ to whom the media is interested in appealing.166 The project was particularly interesting as, for two weeks of it, children ran a parallel monitoring project. The children disagreed with many aspects of the media’s portrayal of children, particularly its focus on ‘bad news’ as well as its lack of respect for the dignity and privacy of children demonstrated by the choice of language and the identification of child abuse victims by the media. The project revealed the way in which children are often ignored or, alternatively, exploited by the media. Subsequent monitoring of the media during the 2004 South African national election by the same Project highlighted the dearth of discussion on child rights-related issues. This was caused, at least in part, by the silence of political party proposals on such matters. Of the some 5,000 news items during the election campaign, only five focused on children and/or child abuse, roughly 0.1 per cent of the total covered by the researchers.167 An analysis of the media coverage of the 2009 election found the same.168 Limited and skewed references to children were also evidenced in a six-month audit of 10 UK national newspapers carried out from October 2007 to March 2008 by the Children Rights Alliance for England. Of the 2,642 articles identified as being ‘about children’, only 1.8 per cent were

The Relationship Between the Media and the Convention on the Rights of the Child’ (2004) 12 International Journal of Children’s Rights 139, 144–45. 162

C Desmond, ‘Children Challenge Victim Stereotype’, 55 ChildrenFIRST. Ibid. 164 Ibid. 165 Ibid. 166 Ibid. 167 Ibid. 168 Media Monitoring Africa, Deadly Silence: Media Election Coverage Confirms Disinterest in the Welfare of Children, Research Report (20 April 2009), available at www. mediamonitoringafrica.org/index.php/resources/entry/deadly_silence_-_media_election_coverage_confirms_disinterest_in_the_welfar/. 163

86 Children and Democracy about children’s rights or equality.169 Standards in, or quality of, education was the second most common positive theme in articles about children, at 8.2 per cent of the sample.170 However, the study found that articles about child deaths/accidents featured disproportionately highly, making up 17.9 per cent of the entire sample, while other articles about the child or young person as ‘victim’ also dominated coverage of children. The project also found a sharp divergence between the treatment of children by broadsheets and tabloids, respectively: while articles about antisocial behaviour made up 7.4 per cent of tabloid coverage of children, they only constituted 2.9 per cent of broadsheet coverage.171 In October 1996, the ComRC held a day of general discussion on ‘the child and the media’. One of the three main areas of discussion was what could be done to encourage the media to contribute to improving the image of the child through their reporting.172 Reference was made to the most common stereotypes in media reporting about children, such as the ‘violent teen-ager’ or the misrepresentation of children from specific groups.173 The concern expressed by the Committee about these issues demonstrates its recognition of the control that the media has over societal perceptions of children, the way in which the media has (and continues to) alternatively idealise or demonise children over time, and the impact that this may have on public opinion and politicians.174 In practice, children are nearly always media ‘objects’, interviewees rather than interviewers and subjects rather than authors of articles. They do not sit on the executive bodies that dictate media agendas and programming. There have been some one-off initiatives in which children have adopted more active roles in relation to the operation of media services and the production of media functions.175 Indeed, initiatives such as the UNICEForganised International Children’s Day of Broadcasting (ICDB) have gone from strength to strength. According to the UNICEF website, ICDB is a day on which broadcasters around the world air quality programming for and about children. This positive description is, however, slightly undermined

169 Children Rights Alliance for England, Children’s Rights and Equality in the Newspapers (London, Children Rights Alliance for England, 2009) 3. 170 Ibid 9. 171 Ibid 4. 172 ComRC, Day of General Discussion on The Child and the Media, excerpted from CRC/ C/50, Annex IX, 13th Session, 7 October 1996, para 245. 173 Ibid para 255. 174 For an excellent discussion of the treatment of children by the media in a British context, see B Franklin, ‘Children’s Rights and Media Wrongs: Changing Representations of Children and the Developing Rights Agenda’ in B Franklin (ed), The New Handbook of Children’s Rights: Comparative Policy and Practice (London, Routledge, 2002). Many of Franklin’s general observations are applicable to the treatment of children by the media in other jurisdictions. 175 For more, see MAGIC Bank website, www.unicef.org/magic/bank/mediastudies.html.

Other Reasons for Children’s Inability to Exert Indirect Influence 87 by UNICEF’s statement that ‘most of all, [broadcasters] allow children to be part of the programming process’.176 The use of the word ‘allow’ is telling, indicating that, while there may be increased child participation in the media, the ‘media reins’ are still very much in adult hands. The 1999 Oslo Challenge, which emerged from a meeting of children, young people, media professionals and child rights experts organised by the Norwegian Government and UNICEF, highlighted that ‘in every aspect of child rights, in every element of the life of a child, the relationship between children and the media plays a role’. The Oslo Challenge Network was established following the meeting for professionals and organisations working in the field of children and the media to share information and ideas. This Network (now known as the MAGIC Network) seeks to develop the relationship between the media, children and their rights by providing resources such as information on media initiatives by, with and for children, guidelines for media and information for parents, government and a whole range of stakeholders.177 One area in which there is growing participation on the part of children and young people is that of social media. Social media, which is premised upon web-based technologies, includes blogging, online information or data-sharing and social networking sites. Social media have been vaunted as a means of engaging children and young people in democratic activity.178 Indeed, such media appear to have the potential to play a key role in increasing the participation of young people, particularly teenage children, in political processes or in challenging the outcomes of those processes.179 Amongst other things, this is a result of the fact that social media is more open to children than other, traditional forms of media due to its relative cheapness, accessibility and usability. Furthermore, there is evidence that the biggest demographic groups using such social media are children and young adults.180

176 UNICEF, The International Children’s Day of Broadcasting, http://www.unicef.org/ videoaudio/video_33610.html. (emphasis added). 177 See the Magic website, www.unicef.org/magic/index.html. 178 See, eg in a UK context, J Ali and T Davies (eds), Social Media: Youth Participation in Local Democracy (London, Local Government Information Unit, 2009). This publication is described as ‘a practical guide that aims to help councils [local authorities] understand and ultimately harness the power of social media as an important tool for engaging young people in democratic activity’. 179 For a discussion of how social media technologies have been, and can be, used to engage youth in civic and political participation and on the notion of ‘digital democracy’ more broadly, see W Lance Bennett (ed), Civic Life Online: Learning How Digital Media Can Engage Youth (Cambridge, MA, The MIT Press, 2008) 25–50. 180 For instance, 2010 research by the US-based Pew Internet and American Life Project revealed that, over the preceding 10 years, teens and young adults were consistently the two groups most likely to go online (A Lenhart, K Purcell, A Smith and K Zickuhr, Social Media and Mobile Internet Use Among Teens and Young Adults (Washington, DC, Pew Internet and American Life Project, 2010).

88 Children and Democracy Of course, the fact that social media entails Internet access necessarily places it out of the reach of many socio-economically disadvantaged children. However, in areas where the Internet is not readily accessible, young people, including children, are making growing use of mobile phones (through mass-texting, etc) to mobilise to bring about political change.181 Again, however, such activity is limited to those children who can afford a mobile or who have access to the mobile of another. An interesting and often-praised example of social media being employed by young people to challenge political decisions that they disagreed with occurred during the so-called 2009 ‘Green Revolution’ in Iran. Here, young Iranians used Twitter to galvanise and organise protests against the allegedly fraudulent and irregular election of the presidential incumbent. While such activity was initially hailed as a ‘Twitter Revolution’, commentators have more recently proved critical of the impact of social media in terms of bringing about political change both in Iran182 and more broadly.183 While initiatives such as those described above are certainly positive, they are merely a drop in the ocean when it comes to the huge change in the media’s attitude and practice towards children that is required in order to address the current power imbalance and ‘exclusion’ of children from media activities. In modern democracies, the media is a key tool for any group seeking to exercise indirect influence on public opinion and the political process. Children’s incapacity to employ this tool poses a critical obstacle to their ensuring that they benefit from indirect representation in political processes. A BRIEF NOTE ON FAILURE OF REPRESENTATION

Today, the situation of children in many democracies suggests that, even if there is not a lack of representation, there has been a failure of such. A failure of representation of children’s interests occurs where others think they are voting or acting so as to forward children’s interests but, in fact, 181 For an example of such actions in a range of different African countries in the context of forthcoming elections, see S Hennessy, ‘Activists see social media as key tool in fight against extremism’, Voice of America, 12 March 2010, available at www1.voanews.com/english/ news/science-technology/Activists-See-Social-Media-as-Key-Tool-in-Fight-Against-Extremism87477007.html. 182 In the Iranian context, it has been highlighted that in the months since the beginning of the Green Revolution, ‘Iranian authorities have used a range of technologies to block, surveil [sic] and infiltrate social media’ (J Gedmin, ‘Democracy isn’t just a tweet away’, USA Today, 22 April 2010). It has also been argued that the use of such media put democracy activists in danger. See, e.g W Heaven, ‘Iran’s crackdown proves that the “Twitter revolution” has made things worse’, The Telegraph, 8 July 2009. For a contrasting evaluation of the ‘Twitter revolution’, see C Christensen, ‘Iran: networked dissent’, Le Monde Diplomatique, 2 July 2009. 183 See, eg A Keen, ‘Social media and the internet do not spread democracy’, The Telegraph, 18 August 2009.

A Brief Note on Failure of Representation 89 do not properly understand what is required by such interests and so fail to advance them successfully. This differs from situations in which there is a lack of virtual representation, which have been considered above. The last 15 years have marked an upsurge in awareness and acceptance of children’s rights across the world. However, as the child poverty statistics show, all countries are still dogged by child poverty issues. Even amongst the most wealthy regional economic and political union of states, the European Union, the European Commission has highlighted that children face a higher risk of relative poverty than the population as a whole, with the risk standing at 20 per cent for children aged 0–15, 21 per cent for those aged 16–24 and 16 per cent for adults above 24.184 Therefore, one must question whether electorates do, in fact, prioritise and vote on the basis of children’s socio-economic interests. In order to conclude that voters in different countries do, in fact, vote to advance issues, an extensive range of information is required in order to answer a range of questions. These include: (1) (2) (3)

(4)

Are voters aware of children’s socio-economic rights-related issues? Do voters regard democratic decision-making processes as an appropriate means to advance such issues? Do voters prioritise action on socio-economic rights-related issues (eg policy-making, expenditure) over action on other potentially competing issues that are also of importance to the voter? Assuming that (b) and (c) are answered in the affirmative, do voters actually bear socio-economic rights in mind when choosing who to vote for and do they seek to identify the candidate/party that will best give effect to children’s socio-economic right through laws and policies?

I do not have sufficient information to answer these questions definitively for the wide range of countries whose jurisprudence is addressed in this book. I can, however, make a number of assertions that seem probable given the arguments made so far. First, traditionally adults seem less likely to vote for child-specific issues than for more general issues (eg health, housing) that have implications for the socio-economic rights of both children and adults. (An exception to this is ‘education’ which is frequently understood to be child-specific and is of key concern to voters in a range of different countries.)185 This 184 European Union: European Commission, Communication from the Commission Towards an EU Strategy on the Rights of the Child, 4 July 2006, Com (2006) 367, para 5. 185 Two national examples serve to support this view. In a 2002 exit poll, Irish voters in the General Election were asked to say which were the issues or problems that most influenced their decision as to which party to vote for. 39 percent mentioned health, 9 per cent mentioned housing, 8 per cent mentioned education and no one mentioned poverty. (See J Garry et al, ‘What Decided the Election?’ in Gallagher, Marsh and

90 Children and Democracy tendency is possibly due to public perception that, in terms of addressing child poverty, enactment of child-specific measures by government is less important than ensuring that parents have jobs and hence are able to meet their children’s socio-economic needs. There is, however, evidence of a growing awareness of children’s rights entering political mindsets— a fact that is likely to be reflective of a perceived change of focus in the priorities of voters. An interesting example of this (albeit from a jurisdiction with no express constitutional protection of children’s socio-economic rights) was the evolution in the approach adopted to children’s issues, including children’s rights, in the manifestos of the three largest parties between the 2005 and the 2010 UK general elections. The manifestos of the Conservative Party, the Liberal Democrats and the Labour Party included discrete sections on ‘education’ and ‘families’ (including children) and all of the manifestos were notable for their extensive focus on child-related issues in a range of contexts, including child poverty, childcare, health and crime, albeit to different degrees. In addition, all of the manifestos referred to children having rights (in the sense of human rights rather than merely statutory entitlements) at some point and were far more child-centric than their 2005 counterparts. The extent of this change in approach should not be overstated, however. For instance, focus on autonomy-related rights for children was limited to a pledge on the Liberal Democrats’ part to reduce the voting age to 16 (while Labour promised to have a ‘free vote’ on this issue), as well as a statement by the former that they would harmonise the minimum wage for everyone over 16, except apprentices. Both Labour and the Conservatives promised greater citizenship education, with the latter undertaking to provide a programme for 16 year olds with the goal of developing the skills needed to be active and responsible citizens. Notably, not one of the parties created a child-friendly version of their manifesto. This is illustrative of a perspective that regards ‘children’s issues’ as increasingly vote-catching but is solely concerned with capturing adult voter support, not that of children.

Mitchell, above n 48, 118, 127). On the other hand, crime was mentioned by 33 per cent of respondents, cost of living was mentioned by 13 per cent and honesty (of a particular political party) by 18 per cent (ibid). In late 2002 a national representative survey asked South Africans ‘What are the most important problems facing this country that government ought to address?’ (Y Davids, ‘The People’s Agenda VS Election Manifestos of the Political Parties’, (2004) 1(3) Election Synopsis 12,12). The survey found that the key issues mentioned by respondents were unemployment/jobs (84 per cent), crime (35 per cent), poverty (28 per cent), AIDS/HIV (26 per cent), housing (22 per cent), education (15 per cent) and health care (10 per cent). People cited social problems of orphans and street children (3 per cent) as a concern (this was probably related to increasing public concern over AIDS, poverty and unemployment), while 9 per cent cited food as a key national problem (ibid). These poll results seem to indicate that the Irish and South Africans do prioritise issues that are related to children’s socio-economic issues but, aside from the issue of education, do not prioritise child-specific issues over other general concerns.

A Brief Note on Failure of Representation 91 The view that adults are primarily concerned with issues that they perceive as adult-relevant rather than ‘merely’ child-specific would seem to be supported by the claims that I set out above in relation to adults voting to forward children’s interests. In addition (and again following on from earlier argumentation) while adults may consider children’s interests when voting, this will not prevent them from placing a higher priority on other issues and voting on the basis of a candidate’s policy position on these issues.186 It thus seems likely that voters will be most concerned about issues that impact upon children’s socio-economic rights where child poverty is perceived as a pressing, general issue. We can assume that this is more likely to be the case where the primary issue in a jurisdiction is absolute or consistent, rather than relative, poverty. Ultimately, however, it seems probable that the disadvantaged position of children in democracy is more attributable to a lack of adequate representation by other members of society than to a failure in such representation. As stated in the Foreword, children are disproportionately represented amongst the poor globally. It is difficult to believe that, if there was a real desire to improve the situation of children, it would be the case in the world’s richest nations (ie those countries that arguably have the resources to eliminate child poverty) that ‘despite a doubling and redoubling of national incomes in most countries since 1950, a significant percentage of their children are still living in families so materially poor that normal health and growth are at risk’.187 While it is indisputable that less developed countries are much more restricted in terms of what they can do to alleviate child poverty than wealthier societies, it is still arguable that the governments in such countries are not doing everything within their power to improve the position of children and vindicate their socio-economic rights, whether international or constitutional. In its African Report on Child Wellbeing 2008,188 the Africa Child Policy Forum reviewed the ‘child-friendliness’ of a range of African nations, a measure that was based on data on the extent of protection of children by legal and policy frameworks and state efforts to meet basic needs.189 The Forum found that the child-friendliness of African states was not necessarily related to a particular state’s national income or

186 I am not claiming that voters’ choice of political party is solely attributable to the correspondence of the stated policy positions of that party with the policy preferences of a particular voter. Issues such as a perceived lack of a viable political alternative to the ruling party, partisan identification with a particular party, as well as the previous record of a political party on an issue may also play a role in determining voter choices. 187 UNICEF, ‘A League Table of Child Poverty in Rich Nations’ in Innocenti Report Card No 1 (Florence, UNICEF Innocenti Research Centre, 2000) 3. 188 African Child Policy Forum, The African Report on Child Wellbeing 2008: How ChildFriendly are African Governments? (Ethiopia, Africa Child Policy Forum, 2008). 189 Efforts to meet basic needs were measured in terms of budgetary allocations and achievement of outcomes.

92 Children and Democracy the availability of resources to that country.190 Rather, it was all to do with political will and enlightenment.191 I argued in the Foreword that the fact that the fourth Millennium Development Goal, which calls for the reduction of the mortality rate among children under five by two-thirds, is ‘seriously off-track’ and ‘is commonly regarded as the furthest [MDG] from being achieved’ can be construed as evidence of the relatively low priority accorded globally to children and their socio-economic rights.192 UNICEF has highlighted that gains in reducing child mortality are evident in some of the world’s poorest countries and across the developing regions, something which suggests that when ‘evidence, sound strategies, sufficient resources, political will and an orientation towards results are consciously harnessed’, remarkable progress can be made.193 This being the case, questions must be asked about the ‘political will’ and the sufficiency of the resources being allocated towards this fundamental children’s rights issue by the four developing world regions whose progress on this MDG is currently insufficient.194 More broadly, the global failure to effectively address child poverty argues strongly for the view that there has been a lack of representation of children’s socio-economic rights and interests by those that are traditionally understood to represent them in democracy. CONCLUSION

This chapter has centred on the position of children as ‘democratic citizens’. I have argued that children’s views are not taken into account in democracy, due both to their exclusion from direct participation in majority-decision making processes and the frequent failure of those who do directly participate to effectively represent children’s views and interests. Thus, children have neither a direct nor indirect input into majority-decision making processes and, while forming part of the governed people, do not form part of the governing people. As we will see in Chapters 3 and 4, the reality of the child’s position in democracy will have crucial implications for two key objections that are frequently raised against the judicial enforcement of children’s socio-economic rights: the ‘counter-majoritarian objection’ and the separation of powers doctrine.

190

African Child Policy Forum, above n 188, 67. Ibid 9–10. 192 UNICEF, The State of the World’s Children 2005 (New York, UNICEF, 2005) 8. 193 UNICEF, The State of the World’s Children 2008 (New York, UNICEF, 2008) 9. 194 The four regions are the Middle East, North Africa, South Asia and sub-Saharan Africa. 191

3 Exploring the ‘Counter-Majoritarian Objection’ INTRODUCTION

I

N THIS CHAPTER, I will develop the claim that children’s exclusion from the majoritarian democratic process, combined with their inability to depend successfully on others to protect and forward their interests, results in their failing to enjoy the benefits and protections accorded to participants in that process. I will argue that this renders the counter-majoritarian objection weaker in relation to the courts enforcing children’s socio-economic rights than it would be with regard to such activity involving the rights of other groups. Ideas about participation and representation are central to claims that the judicial enforcement of children’s socio-economic rights is undemocratic. Thus, it is fitting that this chapter should centre on the work of two theorists, Jeremy Waldron and John Hart Ely, who have focussed extensively on the issues of democratic ‘participation’ and ‘representation’, respectively, in considering the appropriate parameters of judicial review. Although the behaviour I describe and attempt to justify as legitimate judicial activity in this work differs in certain aspects from that discussed by those theorists, the issues it raises with regard to judicial counter-majoritarianism are similar. This is because a primary concern for all those working in this area is the demarcation of legitimate judicial constraints on democratically elected organs. In this chapter, I will conduct an analysis of the claims of both Waldron and Ely about the role of the counter-majoritarian objection in relation to certain forms of judicial activity; this will include a discussion of the presumptions about democracy and democratic institutions that form the bedrock of their different theories. My purpose in doing so is to consider the way in which these are affected when considered in light of children’s socio-economic rights and their particular situation in democracy, as detailed in the previous chapter. In turn, I will consider whether or not the counter-majoritarian argument poses an insurmountable barrier to the courts ensuring the enforcement of children’s socio-economic rights.

94 Exploring the ‘Counter-Majoritarian Objection’ Jeremy Waldron has historically been a strong opponent of judicial review on the grounds that it is counter-majoritarian,1 while, as Brown has observed, John Hart Ely claimed that in certain circumstances, such activity is paramajoritarian.2 My analysis here centres on Waldron’s arguments in his 1999 book, Law and Disagreement, but, where necessary, is complemented and updated by reference to his claims in more recent work, such as his celebrated 2006 Yale Law Journal article, ‘The Core of the Case Against Judicial Review’ in which he restates and somewhat refines his position.3 My discussion of John Hart Ely’s work focuses on his 1980 monograph, Democracy and Distrust: A Theory of Judicial Review.4 THE COUNTER-MAJORITARIAN DIFFICULTY: A BRIEF ACCOUNT

The ‘counter-majoritarian’ difficulty5 arises where the courts—themselves majoritarian institutions in the sense that they reach their decisions by majority vote—act in a way that results in the substitution by the judiciary of its will for that of ‘the people’, as represented by the actions and policies of their democratically elected representatives. The counter-majoritarian objection to judicial review is that, in the words of Alexander Bickel, when a court invalidates a legislative act or the action of an elected executive, ‘it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in [sic] behalf of the prevailing majority but against it’. 6 In constitutional democracies such as those under discussion in this work, ‘nothing can finally depreciate the central function that is assigned in democratic theory and practice to the electoral process; nor can it be denied that the policy-making power of representative institutions, born of the 1 Waldron’s ultimate aim in much of his work (eg Law and Disagreement (Oxford, Oxford University Press, 1999) is to argue that bills of rights (ie constitutional constraints) and judicial review (the courts’ ability to interpret and apply these constraints) are not indispensable features of any constitutional system. In this book, however, I consider Waldron’s work only to the extent of critiquing his claims about majoritarianism when applied in the context of children’s socio-economic rights. 2 R Brown, ‘Accountability, Liberty and the Constitution’ (1998) 98 Columbia Law Review 531, 532. 3 J Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346. For further discussion of the claims made in this article, see R Fallon, ‘The Core of an Uneasy Case for Judicial Review’ (2008) 121 Harvard Law Review 1694 and M Tushnet, ‘How Different are Waldron and Fallon’s Core Cases For and Against Judicial Review?’ (2010) 1 Oxford Journal of Legal Studies 49. 4 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA, Harvard University Press, 1980). 5 A Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New York, The Bobbs-Merrill Company, 1962) 16. 6 Ibid 17.

The Counter-Majoritarian Difficulty: A Brief Account 95 electoral process, is the distinguishing characteristic of the system. Judicial review works counter to this characteristic’.7 The counter-majoritarian objection to judicial review and certain other forms of judicial activity is founded on the identification of democracy with majoritarianism—itself a controversial contention.8 Dworkin highlights that the majoritarian premise ‘insists that political procedures should be designed so that … the decision that is reached is the decision that a majority or plurality of citizens favours or would favour if it had adequate information and enough time for reflection’.9 The principle is based on the notion of self-determination or self-governance: decisions affecting the people should be made by the people; that is, by a majority of the electorate or their elected representatives. There is much debate as to whether judicial review or other forms of judicial activity are, in fact, counter-majoritarian.10 Some commentators argue that courts do not act in a counter-majoritarian way due to, amongst other things, their tendency to make decisions that accord with the views of the elected branches of government and public opinion,11 while others make claims about the imperfectly majoritarian nature of law-making practices and the results produced by political processes.12 It has been asserted that judicial review is not a long-term counter-majoritarian force due to the possibility of courts being persuaded to reverse their decisions or public opinion changing to agree with that of the court, by convincing 7

Ibid 18–19. For more, see Chapter 2 where I outline more substantive, ‘outcomes-based’ conceptions of democracy and make it clear that, in my view, majoritarian decision-making processes alone are not necessarily entirely constitutive of democracy in a constitutionalist state. 9 R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA, Harvard University Press, 1996) 15–16. 10 My key focus in this work is the adjudication of constitutional rights and hence constitutional review, rather than simply judicial review in general. 11 For instance, Friedman argues that there are different benchmarks of majoritarianism against which judicial review can be measured: substance majoritarianism looks to determine whether judicial decisions interfere with or actually comport with majority rule, while process majoritarianism examines the extent to which the judiciary is accountable to majority will. He argues that, to a large extent, courts taking part in judicial review conform to these different benchmarks and hence cannot be regarded as acting counter to majority will (B Friedman, ‘Dialogue and Judicial Review’ (1993) 91 Michigan Law Review 577, 587–614). Dahl has argued in an American context that the US Supreme Court’s constitutional decisions ‘are never for long out of line with the policy views dominant among the lawmaking majorities of the United States’ (R Dahl, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’ (1957) 6 Journal of Public Law 279, 285). 12 See, eg ‘Majoritarian Judicial Review: The Entrenchment Problem’ (1997) 85 Georgetown Law Journal 491, in which M Klarman details some of the different theories that dispute the majoritarian character of the law-making process and the results of political processes, including anti-entrenchment theory (which is concerned with the idea that legislators’ desire to perpetuate themselves in office lead them to pursue policies contrary to those preferred by their constituents); and public choice theory (adherents to which believe that legislators generally respond not to the will of a majority of their constituents but rather to well-organised special interest groups, which offer campaign contributions in exchange for favourable votes on legislation). 8

96 Exploring the ‘Counter-Majoritarian Objection’ those in control of judicial appointments to fill vacancies with nominees that disagree with a particular decision.13 Alternatively, a court’s decision may also be reversed by constitutional amendment. Whyte has contended that the silence of the people in the face of judicial activism is the approving silence of an electorate who are satisfied with the decisions of their judges; or (perhaps more accurately) the uninterested silence of an electorate (or their political representatives) who are not sufficiently antagonised by those decisions to wish to change them.14 This is certainly arguable with regard to jurisdictions where amendment of the Constitution is relatively easy to bring about, or in relation to US state constitutions, whose amendment procedures are generally not very onerous, at least compared to those pertaining to the US Federal Constitution.15 However, merely because judicial review is not counter-majoritarian in the sense of being final or irreversibly contrary to the will of the majority does not mean that such activity is not objectionable for being counter-majoritarian at the time a decision is taken, or for the period that the decision stands unreversed. In representative democracies, effective representation of the will of the majority by their representatives is guaranteed by political accountability in terms of which elected representatives are obliged to stand for (re-) election on a periodic basis. The presumption is that representatives who are electorally accountable are dependent upon public approval in order to ensure their re-election. Therefore, the policies and laws they produce are more likely to be a reflection of the will of the majority than those made by unelected policy- or law-makers, such as judges.16 Some commentators have convincingly disputed the possibility of representation of the views of others by elected representatives17 and the presumptions surrounding

13 See, eg C Eisgruber, Constitutional Self-Government (London, Harvard University Press, 2001) 97. 14 G Whyte, Social Inclusion and the Legal System (Dublin, Institute of Public Administration, 2002) 36. 15 For more on this point, see H Hershkoff, ‘Positive Rights and State Constitutions: The Limits of Federal Rationality’ (1999) 112 Harvard Law Review 1131, 1162–63. 16 For a seminal discussion of political representation, see H Pitkin, The Concept of Representation (Berkeley, CA, University of California Press, 1967). For a more contemporary analysis and categorisation of different forms of representation (what the author describes as going beyond the ‘traditional model’ of ‘promissory representation’ which ‘focused on the idea that during campaigns representatives made promises to constituents, which they then kept or failed to keep’), see J Mansbridge, ‘Rethinking Representation’ (2003) 97(4) American Political Science Review 515–28, 515. 17 Eg postmodernist theorists on representation claim that any representation ‘inevitably distorts its subject’s grounded and unique actuality, embodying unconscious assumptions that restrict the subject to its orthodox, readily recognizable meanings ... [They argue that] political representation is precisely such a distortion, spawned by the unfounded assertion that one person represents the views of others and sustained by the manipulation of political symbols through mass media and bureaucratic systems’ (M Feeley and E Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (Cambridge, Cambridge University Press, 1999) 331).

The Counter-Majoritarian Difficulty: A Brief Account 97 the accountability of such representatives to those who vote for them and others in society.18 However, this book will generally proceed on the basis that representation of voters by elected representatives is, in fact, possible. The focus of this book is children and, as highlighted already, like courts, legislatures are unaccountable to children due to the latter’s unenfranchisement. Therefore, while it is necessary to mention the issue of accountability in order to give a full picture of the arguments arising around the countermajoritarian objection, I will not become deeply embroiled in a lengthy discussion about a principle that is of limited relevance to children due to their position in democracy. It is, however, important to briefly address the question of the respective accountability of the legislature and the judiciary, given that this plays a key role in determining views of the parameters of acceptable judicial activity in the context of rights enforcement. The issue of the difference in accountability between elected policy-makers and the unelected judiciary has been dealt with at length and largely boils down to a debate over the view that, while elected policy-makers are entirely accountable, judicial policy-makers are the opposite. (My comments here refer to unelected judges, not judges such as those in many state courts in the United States who have to run for office and are, therefore, accountable to the electorate in much the same way as other elected officials.)19 Roach has pointed out that governments are often not elected with a majority of the votes and, between elections, those with a majority in the legislature have considerable freedom to enact legislation that may not accord with what the majority wants.20 Furthermore, even though judges cannot be removed because the public does not like their decisions, they too read the papers and live in the world, and it would be unrealistic to conclude that they do not consider how their decisions will be received by the elected branches of government and the people.21 Thus, the notion that the legislature is fully responsive and accountable to the people while unelected judges are the opposite is incorrect. One might also observe that there are a range of mechanisms for holding the judiciary accountable. For

18 See, eg J Schacter, ‘Political Accountability, Proxy Accountability and the Democratic Legitimacy of Legislatures’ in R Bauman and T Kahana (eds), The Least Examined Branch: The Role of Legislatures in the Constitutional State (New York, Cambridge University Press, 2006) 45. For a series of useful discussions relating to the issue of the accountability of elected representatives, see A Przeworski, S Stokes and B Manin, Democracy, Accountability and Representation (Cambridge, Cambridge University Press, 1999), in which various contributors examine whether mechanisms of accountability that are characteristic of democratic systems are sufficient to induce representatives to act in the best interests of the represented. 19 It has been argued, however, that ‘those judges who are elected are seldom regarded by voters (and hardly ever regard themselves) as popular representatives in the way that legislators are’ (Waldron, Law and Disagreement, above n 1, 120 n 6). 20 K Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto, Irwin Law, 2001) 99. 21 Ibid.

98 Exploring the ‘Counter-Majoritarian Objection’ instance, the requirement that judges should give reasoned judgments in public arguably amounts to some form of public accountability, albeit of a very different kind to that which elected representatives are considered to be subject to. Furthermore, as Pieterse notes, the deliberative nature of civil procedure, the judicial appointment process and the doctrine of stare decisis all constitute key measures of judicial accountability.22 While these are important observations on the relative accountability of the two organs, the fact remains that the legislature will almost always be more dependent on popular support than judges are due to the insulation of judges from re-election-related pressures. Indeed, ultimately, one has to wonder whether, even if the legislature is not perfectly accountable, this would justify judicial review by the far less accountable judiciary. Bickel’s point that ‘impurities and imperfections … in one part of the system are no argument for total departure from the desired norm in another part’ is a powerful one.23 CHILDREN’S SOCIO-ECONOMIC RIGHTS, THE MAJORITARIAN PREMISE AND THE DESIRABILITY THAT THE LEGISLATURE SHOULD HAVE THE FINAL WORD

Where courts intervene to ensure the enforcement of children’s rights in situations in which the elected branches of government have failed to do so, this undoubtedly may involve the judiciary acting in a way that is counter-majoritarian. As stated in Chapter 1, one of the two assumptions underlying the book’s consideration of the court’s intervention to secure children’s rights is that, under the received conventions of legal interpretation and in the eyes of the reasonable observer, the court has the option in the case in question to either uphold or invalidate a law or policy. In other words, the court is faced with a choice to accept or reject the will of the majority as embodied by the laws or policy made by their democratically elected representatives. Where it chooses the latter option, this will result in its actions being categorisable as ‘counter-majoritarian’. In fact, some of the activity defended in this book is arguably ‘more’ countermajoritarian than simple judicial review (which has traditionally been regarded as limited to the invalidation or striking down of unconstitutional legislation) due to the fact that, amongst other things, my focus extends to situations in which courts outline a positive obligation on the state and set out steps that the state must take in order to fulfil that obligation. However, if we regard counter-majoritarianism as the ‘legitimacy benchmark’ for

22 M Pieterse, ‘Coming to Terms with Judicial Enforcement of Socio-Economic Rights’ (2004) 20 South African Journal on Human Rights 383, 391. 23 Bickel, above n 5, 18.

Children’s Socio-economic Rights, the Majoritarian Premise 99 judicial behaviour, then any behaviour that exceeds that benchmark will be illegitimate, regardless of the form that activity ultimately takes.24 Jeremy Waldron is one of the best-known proponents of a majoritarian conception of democracy. Having conceded that there is no canonical form of democracy,25 he adopts a procedural working definition, where democracy ‘includes a number of ideas organised around the ideal of government by the people—universal suffrage, political equality, majority-rule, fair representation, electoral competition, etc’.26 Waldron claims that there is disagreement within society about matters of principle, including rights. He argues that this is the rule in politics, rather than the exception27 and that the ‘circumstances of politics’ are ‘the felt need among the members of a certain group for a common framework or decision or course of action on some matter, even in the face of disagreement about what that framework, decision or action should be’.28 He asserts that ‘when there is a disagreement [on matters of principle, including rights] among the individual men and women who compose ‘the people’, then political decisions should be made by fair procedures which treat them as equals and which respects the participation of them all’;29 that is, majority voting by members of the community or their elected representatives.30 Waldron believes it is vital that disagreement be resolved in this way because ‘[w]hen citizens or their representatives disagree about what rights we have or what those rights entail, it seems something of an insult to say that this is not something that they are to be permitted to sort out by majoritarian processes, but that the issue is to be assigned instead for final

24 Indeed, under such an approach, any adjudication that did not find in favour of the elected branches of government would qualify as illegitimate, thereby calling the point of public law adjudication into question. 25 J Waldron, ‘Rights-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18, 45. 26 J Waldron, ‘“Constitutional” Democracy or Constitutional Democracy’, paper presented at a conference on Accountability and Representation in European Democracy at the Center for European Studies, Harvard University, 2–3 May 2003, at 4 (on file with J Waldron). Waldron gives a more detailed definition of democracy later on in this paper. He states that, ‘democracy is rule by the people or a system of government organised around the idea that the people should rule on terms of political equality, either through some form of direct democracy, or through a system of representation and electoral accountability that is oriented towards and is responsive to the ideal of popular self-government’ (ibid 7). For more on Waldron’s concept of democracy, see J Waldron, ‘Can There be a Democratic Jurisprudence?’, NYU School of Law, Public Law Research Paper No. 08–35 (2008), 8–11. 27 Waldron, Law and Disagreement, above n 1, 15. 28 Ibid 102. 29 Waldron, above n 26. 30 For critiques of Waldron’s privileging of participative majoritarian decision-making processes in terms of resolving disagreement about rights, see A Kavanagh, ‘Participation and Judicial Review: A Reply to Jeremy Waldron’ (2003) 2 Law and Philosophy 451, and D Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of SocioEconomic Rights (Oxford, Oxford University Press, 2007) 112–13.

100 Exploring the ‘Counter-Majoritarian Objection’ determination to a small group of judges’.31 According to Waldron, it is particularly insulting when they discover that the judges disagree among themselves along exactly the same lines as citizens/representatives do and that decision-making amongst judges also takes the form of majority-voting: ‘citizens may well feel that if disagreements on these matters are to be settled by counting heads, then it is their heads or those of their accountable representatives that should be counted’.32 Majoritarianism is thus the only process by which equal respect or political equality for each individual voter can be ensured.33 Waldron is, therefore, opposed to the judiciary being able to overrule a law or policy that is the expression of the will of the prevailing majority on a question about rights that is the subject of general disagreement.34 Waldron disputes and seeks to repudiate what he terms the ‘outcomebased’ arguments for judicial review; that is, those arguments advanced in favour of judicial review which suggest that, as a decision-making procedure, it will ensure specific, allegedly desirable outcomes—or will certainly do so to a greater extent than legislative decision-making about rights. Rather, he expresses a preference for ‘process-related’ reasons for evaluating a decision-making procedure. In his view, these are reasons for insisting that some person (or institution) make, or participate in making, a given decision ‘that stand independently of considerations about the appropriate outcome’.35 He argues that while outcome-related reasons do not clearly 31

Waldron, Law and Disagreement, above n 1, 15. Ibid. 33 In Law and Disagreement, Waldron concedes that he is working with a very narrow definition of ‘equal respect’ and that normally this concept is ‘used in a way that conveys not just the speaker’s view about how political decisions are reached but also his view about the substantive impact on individuals of the outcome itself’ (116). He argues, however, that any broad, substantive notion of respect is unusable in society’s name in the circumstances of politics. He emphasises that this conception of ‘equal respect’ does not necessarily require an individual to feel that her vote is significant, in the sense of having an effect on the final outcome of a vote (ie where a voter feels that her vote is lost amongst the millions of other cast, she is not necessarily denied equal respect). Rather, the important issue with regard to equal respect is that a person’s vote is accorded the same weight or equal potential decisiveness as every other person’s. In ‘The Core of the Case Against Judicial Review’, Waldron does not employ the language of ‘equal respect’, however, it is clear that he is still operating on the basis that majoritarian democratic decision-making processes accords ‘political equality, that is, equal voice and equal decisional authority’ (above n 3, 1389); it is thus a shift of language employed by Waldron, rather than a change in his conceptualisation of the benefits accorded by such processes. On that basis, I use both terms when addressing his work. 34 Another key objection to judicial review raised by Waldron is that it does not, as he says others claim, provide a way for a society to focus clearly on the real issues at stake when citizens disagree about rights; rather, it distracts them with side-issues about precedent, texts and interpretation (Waldron, ‘The Core of the Case Against Judicial Review’, above n 3, 1359). This work will, however, focus solely on Waldron’s claim that judicial review is politically illegitimate as it disenfranchises ordinary citizens and brushes aside ‘cherished principles of representation and political equality in the final resolution of issues about rights’ (Waldron, above n 3, 1374). 35 Waldron, ‘The Core of the Case Against Judicial Review’, above n 3, 1372. 32

‘The Core of the Case Against Judicial Review’ 101 come down in favour of either decision-making by the courts or that by legislatures, process-related reasons, which are largely participatory, operate to strongly favour legislative decision-making over judicial review. As stated in Chapter 2, I am not arguing in favour of a particular substantive value-based conception of democracy. Nor am I seeking to justify judicial review in terms of the outcomes that it achieves. What I do want to do, however, is to highlight how the presumptions underlying participationrelated process reasons that Waldron’s views as favouring majoritarian legislative decision-making fail to account for the position of children. Unlike Waldron, this work focusses on the judicial review of both legislative and executive actions and decisions. Thus far, Waldron has not dealt in any thorough way with whether, and to what extent, his arguments in favour of preferring majoritarian decision-making processes over judicial review should extend to the executive.36 Here, however, I will proceed on the basis that his arguments would also apply where it is executive, rather than legislative, decisions/outputs that are at issue. I acknowledge that in doing so, I am potentially ‘raising the bar’ for the permissibility of judicial enforcement of children’s socio-economic rights higher than Waldron would. Considerable controversy undoubtedly surrounds the ‘elective credentials’ of the executive (as Waldron describes them),37 particularly where the executive and legislature are not fused. Notions of ‘representation’ and ‘accountability’ certainly do not apply to executives (or members of executives) in many countries in the way that they apply to legislatures in those jurisdictions. In practice, if we accept that executive action is not the result of political participation on an equal basis on the part of voters, then it poses a far less serious barrier to judicial decision-making on children’s socio-economic rights that overrules executive decision-making than would be the case in relation to legislative action. CHILDREN, DEMOCRACY AND ‘THE CORE OF THE CASE AGAINST JUDICIAL REVIEW’

In ‘The Core of the Case Against Judicial Review’, Waldron outlines four key assumptions that distinguish the ‘core case in which the objection to judicial review is at its clearest’ from non-core cases where judicial review might be deemed appropriate as ‘an anomalous provision to deal with special pathologies’.38 I will take these in turn. First, Waldron wants the reader to visualise a society with a commitment on the part of most members of

36

For a discussion of this, see ibid 1354. Ibid 1354. 38 Ibid 1359. These assumptions are detailed (albeit in a different order from that employed here) at ibid 1360–69. 37

102 Exploring the ‘Counter-Majoritarian Objection’ the society and most of its officials to the idea of individual and minority rights. Secondly, this society has a set of judicial institutions, in reasonably good order, set up on a non-representative basis to hear individual lawsuits, settle disputes and uphold the rule of law. Thirdly, it has persisting, substantial and good faith disagreement about rights among members of the society who are committed to the idea of rights. Each of these assumptions is open to question; in fact, I will discuss many of the objections to them below. However, the most important for the purposes of this chapter on the allegedly counter-majoritarian nature of the judicial enforcement of children’s socio-economic rights is Waldron’s assumption that the society in question has ‘democratic institutions in reasonably good working order, including a representative legislature elected on the basis of adult suffrage’ (emphasis added).39 Waldron has acknowledged in his work that children occupy a different legal status from most members of democracy.40 He does not, however, explicitly recognise or explore in any detail the issue of the political status of children, other than to apparently praise the fact that children are excluded from voting on the basis that this is a limitation of the franchise directed at securing a ‘modicum of mature judgment at the polls’.41 Indeed, bearing in mind Waldron’s adherence to a ‘will theory of rights’, under which rights are founded on autonomy and are justified in terms of protection of a right-holder’s choices, it is perhaps unsurprising that he is apparently so dismissive of children, who are frequently regarded as failing to correspond to the conception of right-holder underpinning such a theory.42 As a result of Waldron limiting his discussions of political equality and legitimacy to adult ‘citizens’, he does not explore in any depth what the implications of his claims are for those who are relegated to a political class other than that of ‘citizen’. This is despite his acknowledgement that children are affected by the decisions in participatory democracies.43 This omission may not, in itself, be surprising or particularly objectionable: one cannot expressly cover the politico-legal status of every individual social group in one’s work. However, Waldron’s work is a useful illustration of how theorists arguing in favour of majoritarian political decision-making processes fail to take into account the implications that their arguments will have for children, a large and permanent societal group affected by democratic decision-making. In turn, a child-centric analysis of Waldron’s work 39

Ibid 1360. Waldron, ‘Can There be a Democratic Jurisprudence?’, above n 26, 50. 41 Waldron, ‘The Core of the Case Against Judicial Review’, above n 3, 1378. 42 For further discussion of children and ‘will theories’ of rights, see, eg K Federle, ‘Rights Flow Downhill’ (1994) 2 International Journal of Children’s Rights 343; N MacCormick, ‘Children’s Rights: A Test-Case for Theories of Rights’ (1976) 62 Rechts-und Sozialphilosophie 305. 43 Waldron, ‘The Core of the Case Against Judicial Review’, above n 3, 1378. 40

Equal Respect and Children’s Socio-economic Rights 103 serves to demonstrate the implications that children’s political exclusion will have for the completeness of the arguments being proffered by those who object to judicial review as counter-majoritarian. This requires a discussion of his claims about disagreement, majority voting and equal respect in light of children’s socio-economic rights and their particular situation in democracy. DISAGREEMENT, MAJORITY VOTING, EQUAL RESPECT AND CHILDREN’S SOCIO-ECONOMIC RIGHTS

The first step of our consideration of the application of Waldron’s theory to the area of children’s socio-economic rights will be to establish the basic condition required to bring his argument into play; that is, the existence of disagreement about these rights. According to Waldron, disagreement about rights arises at several levels.44 First, there is disagreement about what it means to call something a right. Secondly, there is disagreement about what rights we have (what they are rights to) and what they are based on. Thirdly, even if there is a rough or overlapping consensus on a set of basic rights or civil liberties, there is no agreement about what this consensus entails insofar as detailed applications are concerned.45 I will begin with a consideration of the operation of first-level disagreement; that is, disagreement about it means to call children’s socio-economic rights ‘rights’. There are certainly rival understandings of and disagreement amongst both academics and society at large as to what a ‘right’ constitutes.46 However, this book is concerned with the operation and

44 Waldron, Law and Disagreement, above n 1, 11. This paragraph is based on Waldron’s comments on the levels of disagreement about rights in Law and Disagreement, 11–12. 45 There seems to be an element of overlap between the second and the third levels of disagreement: both the issue of what we have rights to and the question of the specific application of such rights have implications for the actual substantive content of such rights. In Law and Disagreement, Waldron pre-empts arguments that these ‘third-level’ disputes are disagreements about interpretation rather than disagreements about rights, stating, ‘I do not particularly care whether we call these disputes ‘disagreements about rights’, or ‘disagreements about interpretation’. What matters is that they divide us in fierce and intractable controversies. And like almost all political disagreements, they appear to implicate issues on which everyone acknowledges that we need as a society to take a common view’ (Law and Disagreement, above n 1, 12). In ‘The Core of the Case Against Judicial Review’, Waldron simplifies his statements on disagreement, saying that there is ‘substantial dissensus as to what rights there are and what they amount to’ (above n 3, 1366–67). For clarity’s sake, I have decided to employ Waldron’s earlier, more expansive categorisation of rights and to deal with the detailed content and application of rights at the third level of disagreement. 46 In the words of Waldron, ‘Does “right” connote a moral absolute, a self-evident truth, a universal, or some combination of the above? Are rights agent-relative claims, claims about benefit or interest, claims about liberty, claims about waivable duty, or what?’ (Law and Disagreement, above n 1, 11).

104 Exploring the ‘Counter-Majoritarian Objection’ implications of children’s socio-economic rights within a legal framework and I would argue that there is little disagreement amongst people over what it means to call a child’s socio-economic right a ‘right’ in a legal context. When people think of children’s rights in this perspective, it is as the basis of a legally enforceable claim against another party, be it the state, their parents or someone else. Evidence of a general understanding of what a socio-economic ‘right’ is can be found in the extensive recent discussions about, and approaches adopted towards, the constitutionalisation of socio-economic rights in a wide variety of jurisdictions ranging from Nepal to Kosovo to Ecuador to Kenya. Debates about whether or how to include socio-economic rights in the constitutional frameworks in question have frequently centred on questions about such rights’ amenability to judicial enforcement and the desirability that government should be able to be held accountable for non-compliance with them. These issues are premised on the understanding that once such rights are constitutionalised, they can form the basis of an enforceable claim against the state. Further evidence of the general understanding of what legal socio-economic rights are is afforded by judicial practice in the context of children’s socio-economic rights. For example, in instances in which children’s socio-economic rights have been plucked by judges from the ‘non-justiciable’ section of a constitutional framework and rendered directly justiciable, courts have been explicit in what they are doing and have felt the need to justify such action.47 The rights at issue in the cases discussed in this book form part of the constitutional frameworks of the relevant countries. In all of these jurisdictions, ‘rights’ are regarded by the public as justiciable legal entitlements that are enforceable against the state. While there is certainly more general, philosophical disagreement on what it means to call something a ‘right’ (as opposed to simply a legal right), this is not a disagreement that is prevalent among the rank and file members of constitutional democracies, where there is a general acceptance of the employment of constitutional rights by plaintiffs to forward claims before the courts. Furthermore, it should be borne in mind that a disagreement about what exactly it means to call something a right is unlikely to come before the courts—most litigation concerns disagreements about the existence or application of rights.

47 See, eg Unni Krishnan, JP and others v State of Andhra Pradesh and others 1993 AIR 217, in which the Indian Supreme Court held that the passage of 44 years since the enactment of the Indian Constitution had effectively converted the non-justiciable right to education of children under 14 contemplated under the Directive Principles chapter of that instrument into a fundamental right enforceable under the law. The state responded to this declaration nine years later in the form of the 86th Constitution Amendment Act 2002 which, amongst other things, inserted art 21A into the Constitution. This provision states that ‘The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine’.

Equal Respect and Children’s Socio-economic Rights 105 So, what of second level disagreement: disagreement about what rights we have and what they are based on? There is general agreement that children have certain legal socio-economic rights.48 As stated in Chapter 1, international law and regional human rights instruments equip children with a formidable array of such rights. These are based on the notion that certain rights adhere to children (and other people) because of their status as human beings—their personhood. This is clear from the text of the various human rights instruments: for instance, the Preambles to the International Covenant on Economic Social and Cultural Rights, and the International Covenant on Civil and Political Rights recognise that ‘these rights derive from the inherent dignity of the human person’.49 The international and national legal socio-economic rights accorded to children are generally uncontroversial. This can be attributed to their 48 That is not to say that there is agreement that children should have such rights. For arguments that children should not have legal rights, see B Hafen, ‘Children’s Liberation and the New Egalitarianism: Some Reservations about Abandoning Youth to Their Rights’ (1976) Brigham Young University Law Review 605, who argue that according rights to children would be harmful due to the negative impact this will have on the authority of parents, which will result in the undermining of parental responsibility; see also M King, ‘Against Children’s Rights’ in R Keightley (ed), Children’s Rights (Cape Town, Juta, 1996) 28, who argues, amongst other things, that the legal system will not be able to ‘deliver on’ what children’s rights advocates hope will be achieved by children’s rights. Laura Purdy argues that granting children the liberty to exercise rights is destructive of the preconditions of having fulfilled adult lives; that is, by according children rights we remove the nurturance, control and discipline that are vital to children developing into ‘good’ adults. (L Purdy, ‘Why Children Shouldn’t Have Equal Rights’ (1994) 2 International Journal of Childrens Rights 223. For a rebuttal of this view, see A McGillivray, ‘Why Children Do Have Equal Rights: In Reply to Laura Purdy’ (1994) 2 International Journal of Children’s Rights 243; and T Campbell, ‘Really Equal Rights? Some Philosophical Comments on “Why Children Shouldn’t Have Equal Rights” by Laura Purdy’ (1994) 2 International Journal of Children’s Rights 259.) Some commentators argue specifically that children should not have legal socio-economic rights. See, eg Arneil, who argues, first, that granting children a court-enforced right of provision (like a legal, justiciable socio-economic right) would shift the political debate about the best way to care for children from parliament to the courts, and consequently from citizens and their representatives to lawyers and their clients. Secondly, it would make it impossible for the government to make the argument that the state should not be involved in such provision, thereby reducing the possibility of political debate, the options on the political table and the involvement of all citizens and their representatives in the discussion of such options. Furthermore, such a right not only does not change the status of children or empower them; it actually reinforces the power of adults, exactly because it recognises children as dependent on their goodwill (B Arneil, ‘Becoming Versus Being: A Critical Analysis of the Child in Liberal Theory’ in D Archard and C Macleod (eds), The Moral and Political Status of Children (Oxford, Oxford University Press, 2002) 70, 77–78). Alternatively it might be argued that, due to the generally positive nature of socioeconomic rights, it would be more helpful to have them in the form of obligations rather than obligations based on rights. Onora O’Neill has suggested that it is better that we should embed children’s (legal, institutional, customary) positive rights into a wider account of fundamental obligations rather than grounding children’s positive rights in children’s fundamental (moral, natural human) rights (O O’Neill, ‘Children’s Rights and Children’s Lives’ in P Alston, S Parker and J Seymour (eds), Children, Rights and the Law (Oxford, Clarendon Press, 1992) 24, 24–25). However, she states that her theory does not threaten children’s positive rights which may have other grounds nor does it deny that children have fundamental rights (at 24). 49 Similar language may be found in the Preamble to the Convention on the Rights of the Child (CRC).

106 Exploring the ‘Counter-Majoritarian Objection’ generality50 and a belief common to nearly everyone that their realisation is desirable. The widespread, international agreement upon children’s socio-economic rights is reflected in the near universal ratification of the Convention on the Rights of the Child (CRC), which contains numerous socio-economic rights provisions.51 As discussed in the Foreword, these rights have also been incorporated into the domestic law of many countries, both in constitutional provisions and in legislation. For the purpose of this book, therefore, there is little disagreement about what legal socio-economic rights children have and what they are based on.52 In practice disagreement about children’s socio-economic rights tends to arise at the juncture when it is necessary to delineate the precise implications of such rights; that is, when discussion turns to what kind of obligations they give rise to and how such rights should be applied. This disagreement is largely due to the nature of socio-economic rights, which are entitlements to particular social and economic goods. As such, their vindication often requires governments to take positive steps to meet the obligations imposed upon them by such rights and will involve government expenditure. The general acceptance of the existence of children’s socio-economic rights implies an acceptance that such rights must be vindicated by the state and that, where necessary, this will entail expenditure. However, the finite resources at governments’ disposal, as well as the existence of numerous competing rights-claims and governmental priorities, mean that there is disagreement among members of society upon how state resources should be spent in relation to children’s socio-economic rights. The question of what the funding priority accorded to different child socioeconomic rights-related services should be is a fraught one. In the context of education, should government be required to provide support to fee-charging schools which provide a particular ethos that would not be available to religious minorities in non-fee-charging state schools? Or should that money be channelled towards providing more extensive educational support for

50 Even efforts to specify the obligations imposed by such rights on states parties by the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child and other human rights treaty-monitoring bodies in the form of General Comments are frequently very general. This has led to accusations that the content of socio-economic rights is inherently vague and indeterminate. See Chapter 1 for a discussion and rebuttal of this claim. 51 At the time of writing, only Somalia and the United States had not yet ratified the Convention. 52 That is not to say that there is no disagreement as to what ‘moral’ socio-economic (or welfare) rights children have. A separate debate is ongoing with regard to what, if any, such rights children have and what they are based on. Indeed, there is disagreement over both what exactly a ‘moral right’ is, as well as what relationship, if any, such rights have with legal rights. Ultimately, it is not necessary to accept that there is agreement upon the existence or basis of children’s moral welfare rights to accept that there is general agreement that children have legal socio-economic rights, based on their personhood, which may be the subject of adjudication and judicial enforcement.

Equal Respect and Children’s Socio-economic Rights 107 children with special needs in state schools? Or, indeed, would that money be better spent on different kinds of services altogether? It is arguable that the budgetary implications involved in vindicating socio-economic rights make it particularly undesirable that an unelected judiciary should effectively overrule the elected branches of government on such issues. However, as has been made clear in Chapter 1, this claim is significantly weakened by the fact that many civil and political rights also have implications for governmental spending and public resources and, therefore, similar objections should be made against court interference with legislative or executive action in relation to these rights.53 Admittedly, this does not necessarily amount to a positive argument for judicial enforcement of socio-economic rights where these have budgetary or policy implications, but it does undermine those who argue for ‘selective’ enforcement of rights by demonstrating the ‘zero sum game’ that would eventuate if their arguments were developed to their logical conclusion. A good example of the disagreement that arises in relation to what children’s socio-economic rights entail in terms of detailed applications of such rights is the differing interpretations given to the child’s right to shelter in the South African Grootboom54 case. One of the major issues in this case was the nature of the obligation imposed on the government by section 28(1)(c) of the South African Constitution (CRSA), which guarantees children the right to shelter.55 The applicants claimed that, when read with section 28(2) CRSA (which states that a child’s best interests are of paramount importance in every matter concerning the child), section 28(1)(c) provided children with an unqualified right to shelter within a family context, which must be fulfilled by the respondent officials. The respondents argued that ‘shelter’ in the context of section 28(1)(c) meant a place of safety for children in especially difficult circumstances as contemplated under childprotection legislation (ie children removed from a family context), not a right to housing on demand for people with children. Under the High Court’s interpretation of the right to shelter, the appropriate organ or department of state was obliged to provide the applicant children and their parents with shelter (which was defined as a more rudimentary form of protection against the elements than is provided by a house) until such time as the parents were able to shelter their own children.56 The Constitutional

53 Admittedly, there are some wholescale rights sceptics who argue that judicial review should never overrule executive action; such a view is not, however, one that is widely shared within any of the legal systems of the jurisdictions addressed in this book. 54 Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC); 2001(1) SA 46 (CC). For more on this case, see Chapters 1, 4 and 6. 55 South African Constitution, art 28(1)(c) states that ‘[e]very child has the right to basic nutrition, shelter, basic health care services and social services’. 56 S Liebenberg and K Pillay, ‘Case Summary: Grootboom v Oostenberg Municipality and Others’ (2000) 2(3) ESR Review 10, 11.

108 Exploring the ‘Counter-Majoritarian Objection’ Court gave yet another interpretation of the right and the obligation imposed thereby. Having stated that section 28(1)(c) CRSA should be understood in the context of the primary duty of parents towards their children and that it does not create any primary state obligation to provide shelter on demand to parents and their children if children are being cared for by their parents or families,57 the Constitutional Court held that the state was obliged to devise and implement within its available resources a comprehensive and coordinated programme progressively to realise the right of access to adequate housing of everyone (children and adults) set out in Article 26 CRC. The difference in state obligations outlined in the pleadings and judgments in Grootboom, as well as in the comments of media and legal commentators, is illustrative of the general disagreement amongst jurists, academics and normal citizens as to what children’s socio-economic rights entail in terms of the actual obligations they impose on the state and how the state should realise them. Another instance of ‘third level’ disagreement about children’s socioeconomic rights is demonstrated in many of the US school finance and education reform decisions, where there have been high levels of judicial, political and societal disagreement both about what obligations the state constitution education clauses in question imposed upon the state and how best the state should meet these obligations.58 Take the example of the New Jersey litigation: over the course of over 30 years of litigation there has been an evolution in terms of the understanding on the part of judges, legislators and society, both as to what is encompassed by the right to a constitutionally ‘thorough and efficient’ (or constitutionally adequate) education established under the education clause in the state constitution,59 as well as about what steps the state must take in order to give effect to that right.60

57

Grootboom, above n 54, para 77. Much of this discussion has centred on the definition of a constitutionally ‘adequate’ education. For a useful discussion of judicial ‘interpretive choice’ with regard to ‘education adequacy’ in the context of state constitution education clause litigation, see J Kagan, ‘A Civic Action: Interpreting “Adequacy” in State Constitutions’ Education Clauses’ (2003) 78 New York University Law Review 2241; R Umpstead, ‘Determining Adequacy: How Courts are Redefining State Responsibility for Educational Finance, Goals, and Accountability’ (2007) Brigham Young University Education and Law Journal 281; and M Rebell and J Wolff, ‘Litigation and Education Reform: The History and the Promise of the Education Adequacy Movement’, Campaign for Educational Equity Policy Paper No 1 (March 2006) 9–11. For a useful overview of the history and key aspects of education litigation under state constitutions, see M Rebell, ‘Educational Adequacy, Democracy and the Courts’ in T Ready et al (eds), Achieving High Educational Standards for All: Conference Summary (Washington, DC, National Academy Press, 2002) 218. 59 New Jersey Constitution, art VIII, s IV, para 1 provides that ‘[t]he Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years’. 60 For an account of this litigation, see M Paris, Framing Equality Opportunity: Law and the Politics of School Finance Reform (Stanford, Stanford University Press, 2010). 58

Equal Respect and Children’s Socio-economic Rights 109 Having established the existence of disagreement about children’s socio-economic rights, the next step in my analysis is to consider Waldron’s arguments in favour of majority decision as the best procedure for resolving such disagreement. Waldron argues that majoritarianism is the most appropriate way to resolve disagreement about rights, as it is respectful of the individuals whose votes it aggregates in two ways:61 first, it respects their differences of opinion about justice and the common good, and, secondly, ‘it embodies a principle of respect for each person in the processes by which we settle on a view to be adopted as ours even in the face of disagreement’.62 The fact that an individual’s view does not prevail (ie that one votes but one is not part of the ultimate majority) does not detract from the fact that equal respect or political equality has been accorded to that individual, provided that we presume that those who vote do so on the basis of good faith and relatively impartial opinions about justice, rights and the common good rather than purely to forward their own interests. Waldron’s thesis is based on the presumption that the view of the prevailing majority in a vote is a reflection of the view on an issue held by a majority of the citizens within a society. He does not go into detail on this in Law and Disagreement or the ‘The Core of the Case Against Judicial Review’ but clearly works from the premise that, under a functioning democracy, everyone who is affected by a problem has the right to a say in its solution and is hence accorded equal respect.63 I have already highlighted that Waldron does not address the exclusion of children from ‘fair’ decision-making processes other than regarding their disenfranchisement as strengthening vote-driven decision-making processes.64 In Law and Disagreement, however, Waldron is explicit about what is required by what he terms a ‘respectful decision procedure’: There is no alternative: if the problem affects millions, then a respectful decision procedure requires those millions to listen to one another and to settle on a common policy in a way that takes everyone’s opinion into account.65

This is reinforced later by his statement that his response to the question of ‘Who shall decide what rights we have?’ is ‘[t]he people whose rights are

61 Waldron makes it clear that he is making these points in relation to majority decision in a direct democracy, rather than majority decision in a representative legislature. He states that ‘in the latter context a representative’s claim to respect is in large measure a function of his constituents’ claims to respect; ignoring him or slighting or discounting his views, is a way of ignoring, slighting or discounting them’ (ibid 109). Thus, representation can be regarded as a way of respecting individual voters while reducing voting to manageable scale (ibid 110). 62 Waldron, Law and Disagreement, above n 1, 109. 63 See, eg ibid 110. 64 Waldron, ‘The Core of the Case Against Judicial Review’, above n 3, 1368. 65 Waldron, Law and Disagreement, above n 1, 110.

110 Exploring the ‘Counter-Majoritarian Objection’ in question have the right to participate on equal terms in that decision’.66 In a piece published in the same year as the ‘The Core of the Case Against Judicial Review’, Waldron argues that legislatures are established to respect the fact that, in principle, each permanent member of the community likely to be bound by the laws of that community is entitled to participate, directly or indirectly, in the processes by which decisions are arrived at: ‘it’s the respecting of this entitlement that gives legislation its special claim to legitimacy in modern democratic societies’.67 It may well be that Waldron views children as participating indirectly in democratic decision-making processes through the voting choices of their parents or other members of society (though his dismissive comments in relation to the exclusion of children from democracy in ‘The Core of the Case Against Judicial Review’ seem to auger against this). However, without his detailing what form such ‘indirect participation’ does/should take, it is impossible to evaluate whether such participation does, in fact, accord legitimacy to legislative decision-making in the context of children’s socio-economic rights in terms of Waldron’s theory. In every country, children below a specified age are completely and deliberately excluded from the mechanism by which disagreements about issues affecting them and their rights are resolved (ie the democratic process). This prevents children from having any direct input into the resolution of disagreement on issues concerning their rights and results in their not benefiting from the equal respect that is accorded to those who participate in the majority decision-making process. Furthermore, even if it were true that the interests or views of children are represented by concerned adult parents (and, as I have already made clear in Chapter 2, I do not believe it to be so), such ‘indirect participation’ of children in democratic decisionmaking processes does not serve to justify a claim that children participate on terms of political equality in the resolution of disagreements about issues affecting them. The position of children thus effectively serves to demonstrate the limitations of the claims that Waldron would make for majority decision. If children were included in the procedures by which disagreement about their rights were resolved, then they would benefit from the equal respect or political equality, which Waldron claims is accorded by them. However, this is not and cannot be the case. It is not because, due to their unenfranchisement, children are excluded from such procedures; it cannot be because it is clear that there will always be some children who would not be capable of partaking in such processes even if it were open to them to do so. For example, 66

Ibid 244. J Waldron, ‘Principles of Legislation’ in R Bauman and T Kahana (eds), The Least Examined Branch: The Role of Legislatures in the Constitutional State (New York, Cambridge University Press, 2006) 15, 30. 67

Equal Respect and Children’s Socio-economic Rights 111 a two-year-old is not capable of voting. Furthermore, it is debatable whether even a significantly older child would be able to vote on ‘the basis of good faith and relatively impartial opinions about justice, rights and the common good’ due to a lack of life experience which would enable them to form such an opinion. I am certainly not arguing here that all adults are capable of appreciating the big picture or of having a reasonable, impartial opinion on the common good. However, their greater age and (presumably) greater life experience puts them in a better position to do so than young children. Thus, children pose a serious challenge to Waldron’s ‘theory of political legitimacy’, to which he does not adequately respond. Crucially, whether it is a case of disagreement between judges or disagreement between voters/their representatives about children’s socio-economic rights, there is the same lack of respect for children. In both situations, children are not granted respect in terms of being valued by means of their votes being accorded equal weight or equal potential decisiveness because they have no votes. In both cases, decisions about children’s rights are reserved to adults.68 Hence, passing the decision-making about children’s rights from the legislature to the courts results in no loss of equal respect or political equality for children. The difference in respect accorded to individual members of a community is what Waldron regards as the fundamental justification of his preference for legislative over judicial majority decision-making about rights. The absence of this difference of respect in the context of children’s rights means that his objections to judicial majority decision-making cannot stand in relation to courts making decisions involving such rights. In comparing courts and legislatures, Waldron states that the difference, when an issue is shifted from legislature to court, is a difference of constituency, not a difference of decision-method.69 In the case of children’s rights, there is no meaningful difference of constituency: in neither situation do they form part of the community that makes decisions resolving disagreement about issues relating to them.70 Thus, Waldron’s arguments in favour of restricting majority decision-making about rights to the community or

68 For further discussion of issues arising in relation to adult courts making decisions about children’s rights, see Chapter 6. 69 Waldron, Law and Disagreement, above n 1, 91. 70 Indeed, Waldron’s point about a lack of a change in constituency in the context of democratic majority decision-making does not necessarily ring true with regard to the situation of adults in modern democracies either. Kavanagh has highlighted that, in such governmental systems, it is almost invariably the case that political decisions are made by public representatives, rather than directly by ordinary members of society: ‘[s]o the question about constitutional review is not whether “the people themselves” should make decisions about rights or hand them over to elitist judges, it is about who should make decisions about rights on behalf of the people—elected representatives alone or elected representatives combined with constitutional review by judges’ (A Kavanagh ‘Constitutional Review, the Courts and Democratic Scepticism’ (2009) Current Legal Problems 102, 116).

112 Exploring the ‘Counter-Majoritarian Objection’ their representatives do not stand in relation to resolving disagreements about children’s socio-economic rights. WHERE REPRESENTATIVES FAIL TO REPRESENT

One final issue arises that must be tackled before we end our consideration of Waldron and the counter-majoritarian difficulty. Despite state protests to the contrary, many of the situations in which the courts enforce children’s socio-economic rights do not involve the government implementing these rights in a way that the court disagrees with. One such instance was the Irish case of TD v Minister for Education,71 which will be discussed further in Chapter 4. Here, the issue was not that the government was seeking to vindicate children’s socio-economic rights in a particular way, but that the government was failing to take any effective action to enforce the rights in question. Indeed, the case was taken to protest governmental inertia in relation to vindicating the socio-economic rights at issue. This lack of action was not due to a conscious government decision that doing nothing was the optimum way of ensuring the guarantee of such rights. Rather, it was largely attributable to incompetence and a lack of political will. The High Court judge described as ‘a scandal’ the interdepartmental wrangles, delays in drafting and legislation, and reverses in policy in relation to vindicating the constitutional rights of the child applicants,72 which had marked the six years that had passed since the original ruling outlining the governmental obligation to provide adequate services and facilities catering for the special needs of the applicants and the High Court hearing in TD.73 While some progress had been made, the government had failed to take sufficient steps or all reasonable efforts to address the entitlements of all (or even a significant number of) such children.

71

TD v Minister for Education [2001] IESC 86. TD v Minister for Education [2000] IEHC 21, per Kelly J, citing DB v Minister for Justice [1998] IEHC 123, 35. 73 The case in which the state’s obligations was initially outlined was FN v Minister for Education and others [1995] 1 IR 409. The FN case involved a 13-year-old in state care who suffered from hyperkinetic conduct disorder and required a period of time in a secure unit which could contain him safely while confronting his behaviour. Having referred to the unenumerated rights of the child mentioned by the High Court and the Supreme Court in G v ABU, and the further elaboration of children’s constitutional rights by the Supreme Court in The Adoption (No 2) Bill, 1987 [1989] IR 656 and MF v Superintendent Ballymun Garda Station [1991] 1 IR 189, Geoghegan J stated that: ‘I would take the view that where there is a child with very special needs which cannot be provided by the parents or guardian there is a constitutional obligation on the State under Article 42, s 5 of the Constitution to cater for those needs in order to vindicate the constitutional rights of the child’ (ibid 416). Geoghegan J stated that he was of the view that the state was under a constitutional obligation towards the applicant to establish as soon as reasonably practicable suitable arrangements of containment with treatment for the applicant. 72

Where Representatives Fail to Represent 113 In other words, in TD it was not a matter of the court disagreeing with the government’s view on what detailed applications of the right at issue entailed, but rather of the court trying to ensure that the right was enforced at all. Thus, while there may be disagreement in society about what socioeconomic rights entail in terms of detailed applications, the general acceptance of socio-economic rights as rights that may require the state to take positive measures means that a failure by elected representatives to act where this is necessary to give effect to such rights amounts to a failure to represent the consensus that those rights represent to those who vote for the elected branches. That said, on a practical level, it must be borne in mind that legislative and policy decisions and outcomes cannot be wholly explained by the notion of accountable elected representatives responding to the views of their constituents. For instance, the institutional framework within which policy is made and implemented may shape future decisions in important ways, by making some courses of action seem more practicable, while others are perceived as entailing unacceptably high costs in administrative adaptation.74 Furthermore, in practice, a large amount of decision-making in modern democracies takes place at the administrative level, rather than by political representatives. Thus, the failure to give adequate effect to children’s socio-economic rights may, in fact, be attributable to a particular institutional framework or shortcomings on the part of bureaucratic or administrative agencies (which may well relate to the lack of either active or passive representation of children by those bureaucracies which are intended to serve them).75 Ultimately, however, elected representatives have responsibility for the performance of such institutions and it is appropriate to hold them legally to account for this. In this case, majority decisionmaking by the people’s representatives did not accord equal respect for individual voters as the government’s inaction was not representative of or based on the views of those who voted for them. This is not to deny that there are instances in which inaction on the part of the elected branches is reflective of a conscious decision that doing nothing is the best way by which rights may be realised. However, it should be noted that where these branches are aware that socio-economic rights impose positive obligations and that failure to act will inevitably lead to non-satisfaction of these obligations, such inaction would appear to be unlikely to be the product of good faith disagreement as to what such rights

74 N Hardiman, ‘Inequality and the Representation of Interests’ in W Crotty and D Schmitt, Ireland and the Politics of Change (London, Longman, 1998) 122, 133. 75 For a short and helpful description of active and passive bureaucratic representation, see R Hardin, ‘An Exact Epitome of the People’ in R Bauman and T Kahana (eds), The Least Examined Branch (New York, Cambridge University Press, 2006) 33, 38.

114 Exploring the ‘Counter-Majoritarian Objection’ entail with regard to their detailed application. It would thus seem that such a situation would fall outside Waldron’s ‘case’ against judicial review. Whittington criticises Waldron for switching from legislatures to direct democracy and referenda in his discussion, without any real consideration of the particular problems associated with such,76 and for failing to deal properly with ‘the problematic aspects of the relationship between the constituent principals and their particular agents within the legislature’.77 Waldron himself concedes that ‘one of the glaring defects of [Law and Disagreement] is that it does not include an adequate discussion of representation’.78 In his later work, Waldron makes it clear that one of the premises of his ‘case’ against judicial review is that members of the legislature do think of themselves as representatives, sometimes making the interests and opinions of their constituents key to their participation, on other occasions thinking more in terms of virtual representation of interests and opinions throughout society as a whole.79 He continues to fail to address, however, the reality of the frequent shortcomings in political representation, simply stating that one of his key assumptions underlying the case against judicial review is the existence of a representative legislature.80 But does such a failure to represent justify judicial enforcement of children’s socio-economic rights? It is arguable that while a failure to act on the part of the legislature may justify courts placing children’s socioeconomic rights issues ‘on the legislative agenda’, as it were, it does not legitimise courts in going further and stating how these rights should be implemented. Fabre asserts that in cases where the government is not doing anything, or is not doing enough, to respect people’s constitutional rights to resources, the courts can either ask the government to do more, or tell it what it should do in order to respect the Constitution.81 They should do this by simply reminding the government of what its duties are and telling 76 K Whittington, ‘An Indispensable Feature: Constitutionalism and Judicial Review’ (2002–03) New York University Journal of Legislation and Public Policy 21, 25. 77 Ibid. For more on the issues arising in relation to the representation of voters by representatives, see above. 78 Waldron, Law and Disagreement, above n 1, 110 n 60. In his critique of Waldron’s opposition to judicial review, Kyritsis has argued that the assumption of Waldron and other ‘democratic sceptics’ that democratically elected legislatures can be equated with the people conceived of as a self-governed collective is false (see D Kyritsis, ‘Representation and Waldron’s Objection to Judicial Review’ (2006) 26(4) Oxford Journal of Legal Studies 733). In Kyritsis’ view, legislators are best viewed as trustees of citizens rather than as their proxies (at 741). 79 Waldron, ‘The Core of the Case Against Judicial Review’, above n 3, 1361. One might argue that this ‘virtual representation’ will operate to cover the ‘interests and opinions’ of children. However, Waldron does not do so explicitly and, as I will argue below, such an argument would not stand up to scrutiny. 80 Elsewhere, he states that the application of his argument to ‘undemocratic societies, or societies whose institutions differ radically from that envisaged by him’ is ‘not discussed’ (Waldron, ‘The Core of the Case Against Judicial Review’, above n 3, n 45). 81 C Fabre, Social Rights under the Constitution: Government and the Decent Life (Oxford, Oxford University Press, 2000).

Where Representatives Fail to Represent 115 them how to fulfil these duties by a certain date as deemed reasonable, but should forbear from spelling out in any detail how the government should fulfil them.82 In a related, yet slightly different vein, Waldron accepts that, bearing in mind that it may not always be easy for legislators to visualise what rights issues might arise from the application of a piece of legislation, judicial review may serve as a mechanism that allows citizens to bring rights issues to everyone’s attention as they arise.83 However, he goes further than Fabre, arguing that this is a point in favour of a weak form of judicial review, such as that available under the UK Human Rights Act 1998, where the courts simply review a statute with a view to issuing a ‘declaration of incompatibility’ which does not affect the validity or continuing operation or enforcement of that legislation.84 It does not go towards justifying strong judicial review in which the abstract question of right that has been identified is settled in the way that a court deems appropriate.85 In sum, one might assert that while courts do not act in an unacceptably counter-majoritarian way in telling the legislature to act in relation to rights (about whose existence there is no disagreement in society), they do so when they go further and tell the legislature how they should act in relation to detailed applications of such rights. There are, however, a number of problems with such a claim. First, the distinction between the courts placing issues on the legislative/governmental agenda and determining how they should be dealt with is far from watertight. Take a situation where a court finds that a government’s failure to act violates a socio-economic right. Even if the court does not expressly prescribe how the government should proceed to vindicate this right, the granting of a declaratory order stating that a particular government failure constitutes a rights violation, together with the implicit or express understanding that the government is to remedy this, may be regarded as telling the legislature how it should act in relation to these rights, at least to a certain extent.86 The difference between the two outcomes is in the degree of discretion (which may be considerable depending on the degree of prescriptiveness employed by the court) that they leave the elected organs of government in relation to detailed applications of a right.

82 Ibid 150. Fabre offers two justifications for this approach. First, there is some value to democratic decision-making and, being committed to protecting rights from the attack by the democratic majority does not entail that one should seek to prevent the majority from having any say whatsoever in the way constitutional rights are to be respected. Secondly, allowing for some democratic decision-making on constitutional rights is one way of avoiding the backlashes against rights-holders that might be facilitated by putting too stringent a control on the majority (ibid 150). 83 Waldron, ‘The Core of the Case Against Judicial Review’, above n 3, 1370. 84 Ibid 1355. 85 Ibid 1371. For Waldron’s definition of systems of ‘weak’ and ‘strong’ review, see ibid 1354. 86 For a definition of ‘declaratory order’, see Chapter 1.

116 Exploring the ‘Counter-Majoritarian Objection’ Furthermore, even if the distinction referred to above were watertight, another problem arises in relation to situations such as TD. Despite the existence of numerous, previously-granted declaratory orders and an acknowledgement by the government that it was in breach of its constitutional obligation to children in the same position as the applicants, no effective action had been taken to remedy the violation suffered by the applicants. Here, the courts had placed the matter on the government’s agenda and the government had ignored it, in the face of public disapproval of their inaction.87 I doubt that it could be argued that a further court order requiring an obviously unwilling government to fulfil the constitutional obligations which that government itself had acknowledged was countermajoritarian and denied voters political equality.88 (This would not be the 87 In the years leading up to the Supreme Court judgment in the TD case, a significant amount of media attention was focused on the appalling situation of children with behavioural problems who were in state care. The articles were not often explicitly critical as they were generally accounts of developments in government policy (see, eg P O’Morain, ‘Extra 200 residential places for troubled children threatened, delay blamed on severe lack of trained staff’, Irish Times, 26 April 1999; P O’Morain, ‘Advisory body on residential child care set up by Hanafin’, Irish Times, 21 February 2000). For an example of an explicitly critical article on the government’s policy towards troubled children, see P O’Morain, ‘Judge still fighting for troubled children failed by the system’, Irish Times, 18 October 2000; and for examples of articles on court proceedings involving the placement of such children, see, eg J Maddock, ‘Judge gives ultimatum over disturbed teenager’, Irish Independent, 24 May 2000; M Carolan, ‘Girl who had “ghastly” childhood alleged she was used for prostitution’, Irish Times, 15 June 2001; ‘Judge sends 15-year-old from dysfunctional family to St Patrick’s’, Irish Times, 23 June 2001. However, the media focus on the children’s situation and the reporting of exchanges in court that highlighted the problems in a system ostensibly meant to provide for the needs of troubled children (see, eg M Carolan, ‘HB says it cannot place boy with severe problems’, Irish Times, 25 March 1999; J Maddock, ‘£700,000 funds but no EHB plan for child places’, Irish Independent, 2 December 1998; G Cunningham and J Maddock, ‘Kim: judge raps health board over several “serious errors”’, Irish Independent, 13 October 2001); and the frequent quotation of judicial comments which were highly critical of government policy painted a grim picture of children in serious peril and a state, at best, indifferent to their plight (see, eg M Carolan, ‘Promised units for troubled children delayed’, Irish Times, 17 December 1999; ‘Judge orders building of care units’, Irish Times, 26 February 2000; M Carolan, ‘Judge orders State to provide facility for girl’, Irish Times, 24 May 2000). Of course, media reports cannot be taken as directly reflective of public opinion and, in turn, public policy preferences. However, they are indicative of the opinion of at least some members of society and certainly influence the opinion of others. There were other indicators of huge public sympathy for the troubled children, including letters published in newspapers, and people phoning into radio shows on the topic, expressing outrage at the government’s failure to take action. Furthermore, the dearth of articles and commentators defending government policy in this area allows me to presume that public opinion, insofar as reflected by the media, was at least sympathetic to these children, even if it was not of such force as to motivate the general populace to clamour for change. For more on the determination of public opinion on an issue under adjudication, see Chapter 5. 88 It is arguable that the placement of children’s socio-economic rights on the legislature’s agenda, where there is agreement amongst the general public that they have such rights, may serve to compensate for the lack of equal respect or political equality accorded to children otherwise. However, it is important to note that this is not the claim that I am making here. I am not arguing that the judicial enforcement of children’s rights ensures that children are accorded equal respect; I am merely pointing out that the resolution of disagreement in relation

Where Representatives Fail to Represent 117 case, however, in an instance where the government had taken action but the courts disagreed with the action taken or where the government, with strong public backing, ignored a previous judicial finding.) One might contend that the failure of government to heed the desires and policy preferences of their electors on this issue was, in and of itself, counter-majoritarian. Thus, the court in TD would have been rectifying this through the enforcement of the rights in question. However, an accepted part of the notion of representation in a constitutional democracy is that the electors do not impose upon their representatives any binding, specific instructions. Thus, it is often difficult, if not impossible, to say that an elected representative has ‘failed’ his electors in pursuing (or not pursuing) a particular course of action. It might be argued that what occurs in a situation such as that in TD is that, after having reflected upon an issue, and upon the ‘mandate’ given to them by the electors, elected representatives have decided to pursue a particular action in spite of the specific preferences of some of their electors. If we accept (as I think we must) that, under a system of representative government, elected representatives are granted an element of discretion in law- and policy-making, then every deviation of representatives from the policy preferences of some of their electors cannot be labelled counter-majoritarian.89 That said, where a majority of their electors are in favour of a clearly-defined, specific course of action or inaction, then a failure to give effect to their wishes will constitute acting against the will of the majority. However, given the lack of democratic legitimacy of judicial institutions vis-à-vis legislative ones, it is challenging to conceptualise such judicial activity as genuinely ‘majoritarian’. Such a conceptualisation would only be possible in the (rare) instances in which there is a clear indication of voter preference on a specific policy or legislative issues that matches the approach ultimately adopted by the courts. To conclude, claims about judicial review generally or the courts enforcing children’s socio-economic rights specifically being counter-majoritarian have to be considered in a different light where the courts are acting in a vacuum in which the elected organs of government are not giving effect to the will of the majority who voted for them. Arguably, it is one thing for the courts to overrule and replace an existing governmental policy but quite another for them to declare, and prescribe what steps must be taken in order to satisfy, a constitutional obligation to formulate one.

to their rights by the judiciary does not result in them being accorded any less respect or political equality than where such disagreement is resolved by majority decision-making by the elected branches. 89 I concede that in taking such a view I am veering towards a ‘trustee’ rather than a ‘delegate’ conception of representation.

118 Exploring the ‘Counter-Majoritarian Objection’ CHILDREN AND THE ‘TYRANNY OF THE MAJORITY’

A matter that Waldron fails to discuss in great detail is minorities. The ‘minority’ he talks about in Law and Disagreement is a minority of those who have cast their votes in the decision-making process (ie those who do not form part of the prevailing majority). Thus, he does not take account of the ‘minority’ within society that is excluded from majority decision procedures (ie children and other disenfranchised groups). Whittington makes the crucial point that not only can the majority make decisions that will affect the people as a whole (ie the majority of the electorate plus the minority of the electorate), but it is quite possible for the majority to make decisions that primarily affect particular sections of the minority, but that do not significantly affect the majority itself.90 As Kavanagh highlights, the fact that people have the right to participate in a particular decision does not necessarily mean that no one or no group will effectively be excluded from influencing that decision—a truth that is attributable, amongst other things, to limited political power or influence and the respective sizes of the minority and majority voting blocks.91 So what of children, a societal minority that does not even form part of the electorate or have a formal right to participate? In his later work, Waldron carefully distinguishes between a ‘decisional’ majority/minority and a ‘topical’ majority/minority. While the former term refers to groups who are voting on a decision, the latter refers to those groups whose rights are at stake in the decision.92 In doing so, he deals with situations in which membership of a decisional minority and a topical minority coincide to result in the rights of a person or a group being denied. He does not, however, address the situation of those, such as children, who are perpetually relegated to being a ‘topical’ minority as a result of their exclusion from both the ‘decisional’ majority and minority; that is, those groups for whom (as we saw in Chapter 2) legislatures are inevitably inadequately representative. In Law and Disagreement, Waldron claims that there can be no ‘tyranny of the majority’ where people vote in good faith and everyone has had an opportunity to express their individual opinion on a matter of common concern.93 Obviously this will not be true where no such opportunity is granted. Children are at great risk of being the subject of such tyranny. Take the area of juvenile justice. Although minors are the exclusive ‘consumers’

90 K Whittington, ‘An Indispensable Feature: Constitutionalism and Judicial Review’ (2002–03) New York University Journal of Legislation and Public Policy 21, 31. 91 Kavanagh, above n 30, 473. In this article, Kavanagh argues that judicial review provides an ‘added channel of participation’ for those who might otherwise effectively be disenfranchised (at 484). Thus, far from being a disempowering force, judicial review may be a means of empowering citizens in their efforts to guarantee their rights. 92 Waldron, ‘The Core of the Case Against Judicial Review’, above n 3, 1399. 93 Waldron, Law and Disagreement, above n 1, 13.

Children and the ‘Tyranny of the Majority’ 119 of the juvenile justice system, the laws and processes that make up the system are generally uninformed by their views due to their lack of political influence and exclusion from the democratic decision-making processes that determine such. If Waldron’s supposition, that voters approach issues in good faith, rather than with the aim of forwarding their own particular interests, is true, this tyranny of the majority is not necessarily a cause for worry as such tyranny will, in fact, be benevolent. However, should his supposition prove false, then this would have very serious detrimental implications for the enforcement and implementation of children’s socioeconomic rights by the democratic system. Waldron’s suggestion that a tyrannical legislative decision is mitigated by the fact that it was not reached by a tyrannical process (in that the decision in question was not made in a way that tyrannically excluded certain people from the process as equals),94 clearly does not apply in the case of children in modern democracies. In ‘The Core of the Case Against Judicial Review’, Waldron argues that the most productive way of characterising tyranny of the majority ‘is where topical minorities are aligned with decisional minorities’—a situation that seems likely to be less tyrannical in practice that one in which a topical minority is excluded from any ‘decisional’ role at all (the situation that will necessarily arise where children’s rights are subject to democratic decisionmaking by bodies in which they do not play a part).95 Borrowing from the language of Justice Stone (at footnote 4) in the US Supreme Court Carolene Products decision,96 Waldron does acknowledge the role that judicial review might potentially play in protecting ‘insular and discrete minorities’ that are the subject of majority prejudice or antipathy, albeit that he does not regard this as establishing a case or general argument for judicial review.97 Again, however, he fails to address the position of the unenfranchised. Waldron’s shift to at least envisaging a situation in which there might be scope for judicial review to play a role moves him closer to the views of commentators such as Kavanagh who argue that, ‘where there is a 94

Waldron, ‘The Core of the Case Against Judicial Review’, above n 3, 1394. Ibid 1398. 96 Carolene Products v United States, 304 US 144, 152–53 n 4 (1938): ‘There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth ... It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation ... Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry’. 97 Waldron, ‘The Core of the Case Against Judicial Review’, above n 3, 1404. 95

120 Exploring the ‘Counter-Majoritarian Objection’ popular lack of concern for or straightforward opposition to the protection of the rights of one particular group and where bias can cloud judgment’, then there is a case for removing rights from the majoritarian mechanism and submitting some of those decisions to an independent review body such as the courts.98 ENTER ELY

While Waldron deals only belatedly with the issue of minorities, Ely makes it clear that he seeks to suggest a way in which the protection of popular government and the protection of minorities from denials of equal concern and respect can be understood as arising from a common duty of representation.99 Waldron regards majority decision-making as a means of according equal respect to voters by enabling them to advance their opinion on the general good. In contrast, Ely argues that: the duty of representation that lies at the core of our [ie the US] system requires more than a voice and vote. No matter how open the process, those with most of the votes are in a position to vote themselves advantages at the expense of others, or otherwise refuse to take their interests into account. ‘One person, one vote’ under these circumstances, makes a travesty of the equality principle.

Whereas Waldron argues that a theory of politics should work on the basis that people who really care about justice and rights may nevertheless disagree about what these entail,100 it is clear from his concerns about the potential domination of the minority by the majority that Ely believes in a pluralist electorate that is generally driven by self-interest. As a result, he regards ‘tyranny of the majority’ as a very real and present danger and argues that democracy should not be identified exclusively with majoritarianism, ‘since a majority with untrammelled power to set governmental policy is in a position to deal itself benefits at the expense of the remaining minority even when there is no relevant difference between the two groups’.101 Asserting that the US Constitution contains provisions that instruct people to look beyond their four corners,102 Ely rejects the use of clause-bound 98

Kavanagh, above n 30, 472. Ely, Democracy and Distrust, above n 4, 86–87. 100 Waldron argues against adopting a self-interest model of politics, as to do so is inconsistent with the idea that rights should be protected due to respect for the moral capacity of rights-bearers. In other words, a self-interest model of politics contradicts the presumptions that rights theorists have traditionally made about rights-bearers/voters. For more see Law and Disagreement, above n 1, 302–5. 101 Ely, Democracy and Distrust, above n 4, 7. 102 Ibid 38. 99

Enter Ely 121 interpretivism or external sources of substantive values in order to give determinate content to these provisions.103 He argues that the US Constitution ‘is overwhelmingly concerned, on the one hand, with procedural fairness in the resolution of individual disputes … and on the other … with enduring broad participation in the processes and distributions of government’.104 In doing so, he argues that the rights under the US Constitution are predominantly procedural, rather than substantive in nature. According to Ely, that instrument proceeds from the assumption that an effective majority will not inordinately threaten its own rights and has sought to assure that such a majority will not systematically treat others less well than it treats itself.105 The Constitution has done so by structuring decision processes at all levels to try to ensure, amongst other things, first, that everyone’s interests will be actually or virtually represented at the point of substantive decision; and secondly, that the processes of individual application will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory.106 According to Ely, even before the enactment of the Fourteenth Amendment on Citizenship Rights, the US Supreme Court operated so as to ensure a kind of ‘virtual representation’ of minorities by tying their interests to those of politically powerful majorities and by intervening to protect such interests when it appeared that such a guarantee of ‘virtual representation’ was not being provided.107 Ely presents a participation-oriented, representation-reinforcing approach to judicial review108 which can ‘appropriately concern itself only with the question of participation, and not with the substantive merits of the political choice under attack’.109 Under his theory, judicial review is deployed against ‘systemic biases in legislative decision-making’.110 He argues that judicial intervention is justified where malfunction occurs in the political market. This can occur in two ways: first, when ‘the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay 103

Ibid chs 2 and 3. Ibid 87. 105 Ibid 100–1. 106 Ibid. 107 Ibid 84–85. The examples given by Ely include a judgment of the US Supreme Court, Brown v Maryland, 12 Wheat 419 (1827), which constitutionally bound the interests of outof-state manufacturers to those of local manufacturers represented in the legislature, thereby providing ‘political insurance that the taxes imposed on the former would not rise to a prohibitive or even an unreasonable level’ (ibid 84). 108 Ely, Democracy and Distrust, above n 4, 87. 109 Ibid 181. As Komesar notes, Ely ‘sees the Constitution as concerned primarily with the mode of decisionmaking rather than with dictating specific decisions’ (N Komesar, ‘Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis’ (1984) 51 Chicago Law Review 366, 398). 110 M Klarman, ‘The Puzzling Resistance to Political Process Theory’ (1991) 77 Virginia. Law Review 747. 104

122 Exploring the ‘Counter-Majoritarian Objection’ out’;111 secondly, when, although ‘no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognise commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system’.112 It is the second manifestation of political malfunction that will serve as our starting point here.113 So how does Ely conceptualise judicial intervention in the context of political market malfunction? Ely regards judicial review as a matter of focussing on the process of legislation rather than the outcome considered in isolation from that process. He argues that the process should be tested against the standard of ‘democracy’ and that process-based review is, therefore, consistent with democracy, while substantive-based review, which looks to outcomes, is antagonistic to it.114 In terms of defining democracy, Ely states that ‘rule in accord with the consent of a majority of those governed is the core of the American governmental system’115 and his work largely adheres to a notion of majoritarian democracy incorporating notions of popular control and egalitarianism.116 He states that his ‘representation-reinforcing orientation’ recognises the unacceptability of the claim that appointed and life-tenured judges are better reflectors of conventional values than elected representatives. Instead, his theory devotes itself to policing the mechanisms by which the system seeks to ensure that elected representatives will actually represent.117 Ely argues that appointed judges are in a position to assess objectively claims that, either by clogging the channels of change or by action as accessories to majority tyranny, elected representatives do not, in fact, represent the interests of those whom the system presupposes they do;118 that is, those who their decisions affect. For Ely, the concern about departures from the democratic political process, which he regards as demonstrated in the jurisprudence of the US

111

Ely, Democracy and Distrust, above n 4, 103. Ibid. 113 Ely talks about the first kind of malfunction in ch 5 of Democracy and Distrust. He argues that ‘[c]ourts must police inhibitions on expression and other political activity because we cannot trust elected officials to do so: ins have a way of wanting to make sure the outs stay out’ (Democracy and Distrust, above n 4, 106). Due to children’s unenfranchisement, their ineligibility for public office and their (frequent) development-related incapacity, there seems little potential for them to employ directly the channels of political change to gain political power. Therefore I will concentrate on the second kind of malfunction that Ely identifies. 114 R Dworkin, ‘The Forum of Principle’ in A Matter of Principle (Cambridge, MA, Harvard University Press, 1985) 33, 59. 115 Ely, Democracy and Distrust, above n 4, 7. 116 See, eg his statements in Democracy and Distrust, above n 4, 76. For a critical discussion of Ely’s understanding of democracy, see J Schacter, ‘Ely and the Idea of Democracy’ (2004) 57 Stanford Law Review 737. 117 Ely, Democracy and Distrust, above n 4, 102. 118 Ibid 103. 112

Enter Ely 123 Supreme Court and the text of the US Constitution itself, is epitomised in the Carolene Products footnote,119 which set out those circumstances in which judicial intervention might be expected. In his view, the second paragraph suggests that it is an appropriate function of the Court to keep the machinery of democratic government running as it should; to make sure the channels of political participation and communication are kept open.120 The third paragraph suggests that the Court should also concern itself with what majorities do to minorities, particularly mentioning laws ‘directed at’ religious, national and racial minorities and those infected by prejudice against such ‘discrete and insular minorities’.121 Obviously, Carolene Products is an American case and Ely presents his theory in the context of American constitutional law. Thus, many of the critiques of his work have centred on his particular understanding and interpretation of that jurisprudence.122 However, what Ely says with regard to malfunction in the political process and judicial review facilitating political participation and reinforcing representation can be legitimately and usefully applied to other representative constitutional democracies. There has been much criticism of Ely’s ‘process-based’ theory of judicial review. Probably the most serious flaw of the theory is his failure to acknowledge that the choice of ‘democracy’ as the source of interpretive principles is itself a substantive value. Ely fails to defend his own particular conception of democracy, appearing to presume that his view of democracy is an inevitable reading of the general ideal123 as opposed to a subjective, personal notion. This is particularly problematic given, as Schacter observes, the existence of a real ambiguity in Ely’s visualisation of democracy, an ambiguity that he does not resolve in Democracy and Distrust.124

119 See above n 96. For further discussion of this celebrated footnote, see R Cover, ‘The Origins of Judicial Activism in the Protection of Minorities’ in M Minow, M Ryan and A Sarat, Narrative, Violence and the Law: The Essays of Robert Cover (Ann Arbor, MI, University of Michigan Press, 1992) 20. This article also provides an excellent historical analysis of footnote 4 and minorities in American society. For more on footnote 4 as well as a criticism of the Carolene Products approach to judicial review, see R Ackerman, ‘Beyond Carolene Products’ (1985) 98 Harvard Law Review 713. 120 Ely, Democracy and Distrust, above n 4, 76. 121 Ibid. 122 For instance, Eskridge argues that Ely’s theory provided a much better defence of judicial activism in the Warren Court’s race cases than in the post-1969 sex, sexual orientation and race cases. According to Eskridge, the newer cases expose the representation reinforcement model to charges that it understates the substantive commitments of the Constitution and lacks a political theory of democracy that courts ought to be ‘perfecting’ (W Eskridge, ‘Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics’ (2005) 114 Yale Law Journal 1279, 1283). In this book, however, my aim is to consider the potential for the application of Ely’s theory generally rather than in the context of US constitutional law particularly. 123 C Sunstein, The Partial Constitution (Cambridge, Cambridge University Press, 1993) 143–44. 124 See Schacter, above n 116, 750.

124 Exploring the ‘Counter-Majoritarian Objection’ Furthermore, Ely declares himself concerned with legislative action motivated by (a) ‘first degree prejudice’, that is widespread hostility towards a particular group, or (b) majority ‘self-flattering’, overly-inclusive stereotypes.125 However, despite his concern with outlining a ‘process theory’ of judicial review, he fails to develop a non-substantive theory of prejudice. Indeed, such a project seems unachievable; Sunstein makes the point that any claim of ‘disadvantage’ or of ‘prejudice’ is a value-laden moral judgment requiring defence and that a self-conscious substantive theory is needed in order to identify the features of a system without disadvantage, prejudice or sufficient influence.126 Crucially, Klarman highlights that while political process theory may avoid controversial value choices in identifying appropriate occasions for judicial review, it cannot avoid such choices when resolving the controversies to which those occasions give rise.127 Waldron argues that the proceduralist argument in favour of judicial review is flawed due to disagreement on democratic participatory rights, which, in his view, should be resolved through majority decision-making by the people and their representatives, rather than the courts. Ely, on the other hand, claims that a representation-reinforcing approach to judicial review involves tasks that the courts, as experts on process and as political outsiders, can sensibly claim to be better qualified and situated to perform than political officials.128 Komesar criticises Ely for failing to compare meaningfully the legislative and judicial processes129 and argues that the political process is not self-evidently or inevitably the least desirable choice for correcting political malfunction: ‘Since some correction can and does occur within the political process, one cannot declare a priori that the judiciary is better qualified to identify and correct a given political malfunction or political malfunctions in general’.130 One can, however, be relatively confident in asserting that the courts may be more open to recognising the existence of malfunction in the first place than participants in the political process, and particularly the wielders of power within that process, who may have a vested interest in the perpetuation of such malfunction.

125

See Ely, Democracy and Distrust, 153–60. Sunstein, above n 123, 144. Sunstein also criticises Ely’s theory on the grounds that ‘the deliberative aspirations of the [US democratic] system require the courts to do something other than provide a fair system of horse-trading’ (ibid). However, this argument is based on his own (admittedly defended) conception of deliberative democracy under the US Constitution. 127 Klarman, above n 110, 783. 128 Ely, Democracy and Distrust, above n 4, 88. 129 Komesar, above n 109, 400. Komesar also disagrees with Ely in terms of his particular institutional allocation under a reading of the US Constitution, saying that neither the Constitution nor Ely’s institutional analysis indicates that the judiciary is or should be given all and only tasks of policing the political process (ibid 411). 130 Ibid 403–5. 126

A Step Too Far? 125 There is no doubt that these criticisms are legitimate and have serious implications for what Ely would claim for his theory. However, the assertions that Ely makes about the nature and aims of representative democracy mean that a consideration of his theory is vital to any discussion of the counter-majoritarian argument, particularly so in the case of a group such as children, who prima facie look to be well-served by an argument that uses exclusion or inadequate representation of a group in the democratic policy-making process as grounds for the courts to substitute their will for that of the majority. ELY’S THEORY OF REPRESENTATION REINFORCING JUDICIAL REVIEW AND CHILDREN: A STEP TOO FAR?

Ely only briefly discusses minorities who are ‘literally voteless’ due to not being members of the society that makes the laws affecting them; that is, ‘geographical outsiders’.131 The minorities that he deals with at length are those who, far from being ‘geographical outsiders’ are technically represented but are effectively politically powerless (for instance, African Americans and women in the United States). In his view, ‘the claim of such groups to protection from the ruling majority is even more compelling than that of the out-of-stater: they are, after all, members of the community that is doing them in’.132 He makes it clear that he is primarily concerned with those groups that are enfranchised, stating ‘[f]rom another [perspective], however, their claim [to such protection] seems weaker: they do have the vote, and it may not in the abstract seem unreasonable to expect them to wheel and deal as the rest of us (theoretically) do’.133 Robert Mnookin has dealt explicitly with the issue of whether children are an appropriate group for special protection under the Carolene Products-Ely process-oriented theory of judicial activism.134 He reaches the conclusion that, if access to the political process is the criterion, then children would seem to be candidates at least as worthy of judicial protection as black people in the United States. However, he continues to say that the cases for intervention on behalf of black Americans entailed more than an inquiry into formal participation rights. He makes the point that, unlike children, black Americans needed special protection, not because

131 Ely, Democracy and Distrust, above n 4, 84. See, eg ibid 83–4 for Ely’s discussion of the Privileges and Immunities Clause of art IV of the US Constitution and the cases in which the US Supreme Court tied the interest of politically powerless outsiders with those of politically powerful insiders. 132 Ely, Democracy and Distrust, above n 4, 84. 133 Ibid. 134 R Mnookin, In the Interest of Children: Advocacy, Law Reform, and Public Policy (New York, WH Freeman & Co, 1985) 37–42.

126 Exploring the ‘Counter-Majoritarian Objection’ formal participation mechanisms were completely unavailable, but because they could not obtain adequate representation through the rights they did possess.135 This is the first major difference between children and the groups that Ely discusses at greater length in the context of his theory: children do not have a formal right to participate in the political process, they are unenfranchised. Does the fact that children are not technically represented mean that they cannot qualify as a group to whom Ely’s theory would lend judicial protection? Waldron notes that Ely and other proceduralists argue that ‘democracy must protect itself from the majoritarian abrogation of its own constitutive structures’.136 However, arguably one of the constitutive features of modern democracies is the unenfranchisement of children, in that all liberal constitutional democracies exclude children from the franchise.137 Komesar argues that, under a process model of judicial review, formal exclusion from the political process seems a likely source of distrust of political decision-making that would and should attract the interest of a reviewing court.138 Simon makes the point that, since they cannot vote, non-citizens (or ‘aliens’ as Ely terms them), by definition, have no direct representation in the legislative process. He asserts that, under such a process theory of judicial review, the courts should take special pains to protect those who have no opportunity to protect their own interests within the legislative process.139 Children, even more so than non-citizens, make up a group that cannot protect themselves from the majoritarian or interest group political process, as they are barred on the basis of their group identity.140 Hence, they should receive special protection from the courts under a process-based theory of judicial review. This is particularly true of poor children who are even less likely to be able to ensure that their interests are taken into account in democratic decision-making processes than their better-off counterparts. By largely wedding himself to the case law of the US Supreme Court and the limitations that that implies (ie Ely appears to borrow his ‘prejudice’ requirement from the US Supreme Court’s ‘suspect classification’ analysis), Ely fails to deal with the situation of those groups that suffer the disadvantages he seeks to remedy but do not fall within the (relatively narrow) parameters

135

Ibid 39. Waldron, above n 25, 39. 137 As highlighted in Chapter 1, a ‘child’ for the purposes of this book is any person who has not yet reached adulthood in terms of being of an age to participate in democratic decision-making processes by exercising their right to vote. 138 Komesar, above n 109, 374. 139 T Simon, ‘Suspect Class Democracy: A Social Theory’ (1990) 45 University of Miami Law Review 107, 128–9, 135–6. 140 For more on non-citizens as a minority social group, see Chapter 1. 136

A Step Too Far? 127 defined by the jurisprudence of the US Supreme Court.141 Indeed, Ely does not deal in detail with children as a group. However, his view that classifications that disadvantage aliens should be treated as suspicious would imply that he does not regard the court intervening on behalf of unenfranchised groups as inconsistent with democracy.142 Furthermore, Ely considers the fact that a group is being oppressed or disadvantaged by the community of which they are members as granting them a particularly compelling claim to protection from the ruling majority. This would appear to give children (who are undoubtedly members of the community that makes decisions in relation to their interests) a right to heightened protection in the case of a finding that they are being systematically disadvantaged. Mnookin says that ‘[t]o guide courts adequately, a process-oriented theory of judicial activism must provide some measure of the adequacy of

141 It is notable that the question of whether or not children qualify as a ‘suspect class’ in terms of the US courts’ equality protection analysis jurisprudence remains unresolved. Arguably, children should fall under the court’s ‘suspect class’ classification due to being ‘saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process’ (per the Supreme Court in San Antonio Independent School District v Demetrio P Rodriguez et al, 411 US 1, 28 (1973) describing a ‘suspect class’). Indeed, some commentators have argued that children (or particular groups of children) should be treated as suspect or semi-suspect classes. (For a consideration of a particular group of children (independent minors) as a suspect class, see A Phocase, ‘Runaways and California’s Juvenile Law: The Emancipation Option’ (1998) 19 Journal of Juvenile Law 46. For a discussion of children as a semi-suspect class, see L Tribe, American Constitutional Law, 2nd edn (New York, Foundation, 1988) 1588–93).) While there is no Supreme Court decision on whether children do or do not qualify as a suspect class, one ruling that might be taken as an indication of the court’s future approach in addressing such a case is the 2004 case of Hedgepeth v Washington Metropolitan Area Transit Authority, 386 F3d 1148 (2004). Here, the Court of Appeals for the District of Columbia Circuit rejected a claim that distinctions burdening the young should be subject to heightened scrutiny. The plaintiff argued that youth bears many of the hallmarks of a suspect classification: a history of discrimination, immutable characteristics and political disenfranchisement. This last hallmark does not apply to the ‘elderly’, the group in relation to which the Supreme Court had previously held that age-based classifications were not suspect. Dealing expressly with the issue of children’s ‘political enfranchisement’, the Court of Appeals pointed out that a finding of political powerlessness, even if defined solely in terms of voting rights, is not enough to trigger heightened scrutiny. The court stated that ‘[p]olitical powerlessness is also not measured solely in terms of access to the ballot box, for the broad array of laws and government programs dedicated to protecting and nurturing children—combined with the large numbers of voters who are parents or otherwise concerned about children—belies the argument that children and their needs cannot attract the attention of the legislature … [the respondent’s] haste to abandon its challenged policy in the wake of adverse publicity confirms that the interests of children are not lightly ignored by the political process’ (ibid 17–18). The US Supreme Court has not addressed this issue. However, perhaps significantly, the Circuit Court judge, Judge Roberts, who delivered the opinion in Hedgepeth now sits on the Supreme Court. I will not deal with this issue further as this chapter is concerned with a general consideration of the counter-majoritarian difficulty in light of children’s position in democracy, not with an in-depth analysis of the US Supreme Court’s treatment of minorities. 142 Ely, Democracy and Distrust, above n 4, 161–2.

128 Exploring the ‘Counter-Majoritarian Objection’ children’s representation on a particular question’.143 In his view, no such measure has yet been offered. I would disagree. If one can establish that children are receiving significantly less representation on an issue than other groups, then we do not require an absolute measure—a relative one will suffice. The other groups in question are those that make up the majority to which elected representatives are beholden; that is, adults. Obviously there are groups of adults who do not form part of the majority and suffer from inadequate representation. However, it is not necessary to prove that all adults benefit from effective representation for children to qualify as a group needing protection under Ely’s theory; it is sufficient to prove that children, as a minority in society, do not. If we can prove that, due to their position in democracy, children will receive significantly less representation in the democratic process as a whole, we may presume that this implies that they will suffer from inadequate representation on particular questions. This is particularly true where such questions involve socio-economic interests and the allocation of restricted public funds that are the focus of many rival demands. I have argued that children enjoy far less representation than the adult majority due to, on the one hand, their inability to directly or indirectly represent their own interests in democracy and, on the other hand, the limitations of representation of their interests by adults. Thus, children do not enjoy adequate representation and, as a result, suffer systematic (though not necessarily deliberate) disadvantage in legislative decision-making. They would, therefore, appear prima facie to be a group entitled to protection under Ely’s theory. Another, less easily resolved, aspect of Ely’s thesis is the fact that he seems to require active prejudice on behalf of the majority and the legislature to be present in order to trigger his representation-reinforcing theory of judicial review.144 It is notable that Ely does not appear to regard children as being victims of such prejudice. In discussing how a process-oriented system of review would operate, Ely states that: [I]t is at least arguable that the facts that all of us once were young, and most expect one day to be fairly old, should neutralise whatever suspicion we might otherwise entertain respecting the multitude of laws (enacted by predominantly middle-aged legislatures) that comparatively advantage those between, say 21 and 65 vis-à-vis those who are younger and older.145

According to Ely, the fact that all legislators were young may enhance their objectivity about just what the difference between young and old 143

Mnookin, above n 134, 41. See Ely, Democracy and Distrust, above n 4, 153–60. For a discussion of this requirement in Ely’s work and of ‘prejudice’ in the context of Carolene Products footnote 4 more generally, see W Sadurski, ‘Judicial Protection of Minorities: The Lessons of Footnote Four’ (1988) 17 Anglo-American Law Review 163. 145 Ely, Democracy and Distrust, above n 4, 160. 144

A Step Too Far? 129 entails.146 Mnookin appears to agree with Ely on this point. He argues that, while it was white prejudice that rendered black efforts to exercise those rights that they did have futile in the US context, there is no similar prejudice against children. Following on from my argumentation in the previous chapter, Mnookin and Ely’s failure to recognise potential legislator and societal prejudice (whether first degree or second degree) against children constitutes an inadequately sophisticated understanding of the particular social and political position of children, and particularly that of disadvantaged and marginalised children. Furthermore, aside from the implications mentioned earlier that this ‘prejudice requirement’ has for Ely’s claims to be concerned with process rather than substance, I would argue that, if part of Ely’s aim with his theory of judicial review is to protect minorities from denials of equal concern and respect by the majority (as he says it is), then it is not sufficient for him to limit his theory to coming into play only when active prejudice is present. Wilful indifference to a minority and its needs may have the same practical effect on the representation of that minority’s interests within the political process as prejudice does; that is, a denial of the protection afforded other groups by a representative system to that minority. As I argued in Chapter 2, a lack of widespread societal prejudice against children in general does not mean that they will automatically benefit from effective representation in the political system or that their interests will not be ignored by the majority of voters and/or the legislature. To borrow Sen’s typology,147 children may be the victim of passive exclusion rather than active exclusion but that does not render their exclusion any less complete or significant in terms of the realisation of their rights. Ultimately, one must ask whether the fact that children do not generally suffer prejudice renders them less deserving of judicial protection than other, more explicitly victimised unenfranchised groups in situations in which they do not receive effective representation in the political process? Another issue that is of relevance to our consideration of Ely’s requirement of ‘prejudice’ in the context of children’s socio-economic interests is his view that judicial concern in relation to the poor ought only extend to ‘laws that actually classify on the basis of wealth, drawing on some comparative generalization about the relative characteristics of the poor on the one hand and those who more nearly resemble the legislators on the

146

Ibid. See A Sen, Social Exclusion: Concept, Application and Scrutiny, Social Development Paper No 1 (Office of Environment and Social Development Asian Development Bank, 2000). Sen states that when deprivation ‘comes about through social processes in which there is no deliberate attempt to exclude, the exclusion can be seen as a passive kind’ (ibid 15). Admittedly, the denial of a useable political status to children might be considered to amount to such ‘active exclusion’. There is, however, considerable room for debate about whether this is the result of the ‘actual fostering of exclusion’ that is envisaged by Sen as constituting active exclusion (ibid 15). 147

130 Exploring the ‘Counter-Majoritarian Objection’ other’.148 Such laws are, Ely believes, ‘extremely rare’.149 More broadly, Ely makes it clear that, in his view, benefits that are not essential to political participation or explicitly constitutionally enshrined are not the appropriate subject of his theory of judicial review.150 This results from his view that the US Constitution cannot be ‘coherently interpreted’ as outlining some appropriate distributional pattern against which actual allocations of hurts and benefits can be traced for the purposes of evaluating their constitutionality.151 Fredman takes issue with Ely’s claim that the only concern of judicial review in the context of distributive justice should be to guarantee that the distribution procedure for such benefits or burdens is fully representative, rather than the courts assuming a role in relation to arranging distribution itself.152 She argues that true participation in politics and society depends on access to resources; therefore, if the courts are going to effectively reinforce representation, then they cannot ignore the distribution of such benefits.153 This is a more nuanced and realistic understanding of the role that access to socio-economic goods plays with regard to political participation. In Ely’s opinion, ‘failures on the part of the government ... to alleviate ... poverty by providing one or another good or service’154 do not constitute manifestations of constitutionally significant prejudice, resulting as they are from ‘a reluctance to raise the taxes needed to support such expenditures’.155 Thus, a failure by the elected branches to provide goods and services necessary to vindicate socio-economic rights is not a ground for intervention by the courts, even in light of the political marginalisation of the poor. Ely’s presumption that prejudice against the poor (which he acknowledges as pervading the political process) does not play a role in relation to key distributional decisions can be criticised on numerous grounds.156 However, this presumption poses a serious obstacle to the notion that the courts can intervene on the basis of Ely’s theory where socio-economic rights are not being vindicated. Thus, not only do children appear not to fall within Ely’s notion of ‘prejudice’, but the most common manifestation of governmental failure to accord them equal concern and respect with regard to their

148

Ely, Democracy and Distrust, above n 4, 162. Ibid. 150 Ibid 135. 151 Ibid 136. 152 S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford, Oxford University Press, 2008) 110. 153 Ibid. 154 Ely, Democracy and Distrust, above n 4, 162. 155 Ibid. 156 For an articulate critique of Ely’s treatment of the poor as a group needing special protection in light of democratic malfunction, see S Loffredo, ‘Poverty, Democracy and Constitutional Law’ (1993) 141 University of Pennsylvania Law Review 1277, 1331–41. 149

Conclusion 131 socio-economic needs would not appear to justify judicial intervention under Ely’s theory either. Ultimately, however, although children may not meet the criteria for judicial intervention under Ely’s US constitutional law-specific theory, I believe that they would certainly qualify under a more broadly stated representation-reinforcing theory of judicial review which recognises that an absence of prejudice or societal hostility may not be sufficient to ensure that children (and other marginalised groups in democracy) receive effective representation in the democratic majority decision-making process. Taking into account the lack of representation of children and their interests in democracy, under a more nuanced, representation-reinforcing theory of judicial review that incorporates a deeper understanding of the impact of the structural inequality, social and democratic vulnerability and the de facto (if not prejudice-motivated) non-representation of children, the courts may well be entitled to intervene to ensure that children’s socio-economic interests are represented in and taken into account by democracy.

CONCLUSION

At the most fundamental level, the counter-majoritarian objection is premised on the notion that ‘the people’ governed should correspond to ‘the people’ governing. The actions of elected representatives are taken to be the expression of the will of the prevailing majority in the society governed. Hence, they should not be overruled by judges who, as unelected officials, cannot presume to speak for a constituency. For the actions of the elected branches of government to be legitimately regarded as the will of the majority of a society, each member of society must have had an opportunity to participate and have their views taken into account, either directly through voting or indirectly through effective representation of their views by others. Chapter 2 centred on the position of children as ‘democratic citizens’. Although children are undoubtedly affected by the decisions of ‘the majority’ (that is, the majority of the electorate), their unenfranchisement means that they cannot have direct input into the democratic system by voting and are expressly precluded from forming part of that majority. Thus, children do not have either a direct or indirect input into majority decision-making processes and, while forming part of the governed people, do not form part of the governing people. Therefore, the principle of self-government ensured by political accountability that underlines the counter-majoritarian argument would appear not to apply to children. The position of children ‘outside democracy’ has contributed to courts being prepared to play an active role in asserting the child’s socio-economic rights in some cases. One significant example of a court taking into account

132 Exploring the ‘Counter-Majoritarian Objection’ the position of children ‘outside democracy’ when adjudicating children’s socio-economic rights is the Colombian case SU-225/98,157 which centred on the child’s right to health. This was an action brought by the parents of 418 children living in a severely disadvantaged area of Bogotá against the national and district health authorities. The parents claimed that their children were in a high-risk situation due to the particular living conditions experienced by residents of the area and that they were unable to meet the cost of vaccines. It was alleged that by failing to provide the children with a vaccine to prevent meningitis free of charge, the defendants had violated the children’s constitutional rights to life (article 11), health (articles 44 and 49) and social security (article 48). In its decision, the Colombian Constitutional Court stated that, in a rights-based social state, the political community owes preferential treatment to those who find themselves in circumstances of clear weakness and are impeded from participating, under equal conditions, in the adoption of public policies that are applicable to them. The Court held that the reason which justifies giving precedence to the application of the ‘democratic principle’ (which provides that the elected political organs are those responsible for tax policies and budgets) at the time of assigning positive rights is ‘irrelevant in the case of the fundamental rights of minors’.158 According to the Court, the democratic principle cannot oppose the claim to essential entitlements of a group of the population that is unable to participate in public debate and which, as a result, does not have its own voice in the adoption of political decisions that affect it. In doing so, the Court essentially recognised that the counter-majoritarian objection to the judicial enforcement of socio-economic rights does not hold water where those affected by the decisions/actions of the democratic majority do not have the opportunity to participate in democratic decision-making processes. Children have socio-economic interests that must be assured by the societies to which they belong. An absolute application of the countermajoritarian objection to the courts enforcing children’s socio-economic rights may result in children’s claims to provision and protection by society being rendered meaningless. This is due to children’s extremely limited ability to exert influence on the elected branches of government. In the absence of judicial intervention, children’s rights risk being unvindicated, with children simultaneously failing to enjoy political equality and the other benefits and protections that theorists claim are accorded to citizens under a majoritarian conception of democracy. If, as Young says, the normative legitimacy of a democratic decision depends on the degree to which those affected by it have been included in the decision-making processes and

157 158

SU-225/98. Ibid.

Conclusion 133 have had the opportunity to influence the outcomes,159 then the legitimacy of democratic decision-making on children’s rights is seriously open to question. Having argued in this chapter that the counter-majoritarian argument does not pose an insurmountable obstacle to courts intervening to ensure the enforcement of children’s socio-economic rights, I will now address another legitimacy-related argument that is most regularly cited to argue against the courts engaging in such activity; that is, the claim that such judicial activity violates the separation of powers doctrine.

159

Iris Marion Young, Inclusion and Democracy (Oxford, Oxford University Press, 2000) 5–6.

4 A Question of Balance? The Separation of Powers, Constitutional Supremacy and Children’s Socio-economic Rights INTRODUCTION

I

N THIS CHAPTER, I discuss whether the separation of powers doctrine acts as a bar on the courts acting to ensure the vindication of children’s constitutional socio-economic rights where the elected branches of government have not done so. I do this in three stages. First, I consider whether the role of the courts in giving effect to children’s socio-economic rights amounts to an encroachment by the judiciary on the functions of the other branches of government, as provided for under a ‘traditional’ notion of the separation of powers; that is, can such activity be regarded as an exercise of the ‘traditional’ judicial law-interpretation or law-application function in the context of children’s socio-economic rights? In doing so, I pay especial attention to judicial intervention in the context of state failure to take positive steps to fulfil such rights and the issue of the granting of mandatory relief. Secondly, I discuss whether the courts’ duty to ensure that all branches of government fulfil their constitutional obligations to give effect to children’s constitutional socio-economic rights can justify courts intervening to ensure that such rights are given effect to, even where this results prima facie in an infringement on, or exercise of, powers traditionally regarded as vested in other governmental organs. This entails a consideration of the courts’ obligations in relation to giving effect to the doctrine of constitutional supremacy. The third part of my argument is linked to the claims made in the previous two chapters in relation to children’s inability to exert either direct or indirect influence on democratic law- and policy-making processes. This exclusion of children means that their rights and interests are liable to receive less attention and be accorded lower priority than those

Introduction 135 of other, enfranchised groups in these processes. Children’s socio-economic rights are, therefore, less likely to be vindicated by democratic mechanisms. I highlight the implications that this might—and should—have for the role of the court as guardian of constitutional rights and for its approach to the separation of powers when dealing with children’s constitutional socio-economic rights. My arguments in this chapter are presented in the context of the Irish and South African constitutional texts and jurisprudence. Both South Africa and Ireland have witnessed instances of judicial enforcement of children’s socio-economic rights. However, the Irish Supreme Court and the South African Constitutional Court ultimately came to very different conclusions on the permissibility of such activity. In particular, these comparative experiences illustrate contrasting judicial approaches to the separation of powers doctrine, the duty of the courts to protect constitutional rights and the implications of these principles for adjudication involving children’s socio-economic rights. Thus, they serve as excellent frameworks through which to explore the arguments presented in this chapter. My discussion centres on two key cases decided by the Irish Supreme Court and the South African Constitutional Court: TD v Minister for Education1 and Minister of Health v Treatment Action Campaign,2 respectively. Both the TAC and the TD cases involved courts considering if, and how, to give effect to children’s constitutional socioeconomic rights. The chapter opens with an introduction to the separation of powers doctrine and some initial observations about the alleged implications that the judicial enforcement of children’s socio-economic rights has for it. I then move on to discuss the scope of the separation of powers and the judicial function under the Irish and South African Constitutions, as well as providing details of the judgments that serve as the backdrop to my analysis. The next part of the chapter centres on the question of whether or not the courts giving effect to children’s socio-economic rights falls within the parameters of the traditional judicial function. This is followed by a wide-ranging consideration of whether or not the courts’ duty with regard to upholding constitutional rights can constitute a justification for the infringement of the separation of powers doctrine. Finally, I address the implications that the fact that courts are dealing with children’s socio-economic rights has—or should have—for their role as guardians of the constitution and their treatment of the separation of powers.

1 2

TD v Minister for Education [2001] IESC 86. Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) (TAC).

136 A Question of Balance? THE SEPARATION OF POWERS DOCTRINE AND THE JUDICIAL ENFORCEMENT OF CHILDREN’S SOCIO-ECONOMIC RIGHTS: SOME INITIAL OBSERVATIONS

The separation of powers doctrine forms a key element of the constitutional frameworks of the jurisdictions addressed in this book, albeit in varying forms. The doctrine is by no means a simple, immediately recognisable, unambiguous set of concepts.3 Gwyn describes it as having two key, generally recognised aspects: first, the doctrine incorporates an analysis of governmental ‘powers’ or functions, associating specific functions with particular branches of government; secondly, the separation of powers is a normative doctrine prescribing certain governmental arrangements which should be created or perpetuated in order to achieve certain desirable ends.4 In addition to being normative, the doctrine is strongly purposive, with multiple rationales being advanced for different theories or conceptions of the separation of powers.5 Here, I will concentrate on those that are most relevant to the specific issue of judicial intervention in relation to children’s socio-economic rights. The first, and probably most often cited, is the ‘balancing’ version of the doctrine, which claims that the distribution of power between branches of government is necessary to avoid its over-concentration in one organ and to ensure that the organs ‘balance’ against each other. In contrast, the ‘efficiency’ or ‘functional’ separation of powers is based on the notion of the managerial technique of specialisation and seeks to allocate the tasks of government to those organs most likely to perform them well.6 Liberal theories of the rule of law serve as another rationale for the theory. Under this understanding of the doctrine, the separation of powers constitutes one means of protecting individual rights in a regime of majority rule, through the division of the law-making and the law-interpreting/law-applying functions between different organs of

3

M Vile, Constitutionalism and the Separation of Powers (Oxford, Clarendon Press, 1967) 2. W Gwyn, The Meaning of the Separation of Powers: An Analysis of the Doctrine from its Origin to the Adoption of the United States Constitution, Tulane Studies in Political Science vol IX (New Orleans, Tulane University, 1965) 5. 5 For a more extensive list of the purposes proffered for employing the doctrine than that which is provided below, see R Bellamy, ‘The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy’ (1996) Political Studies 436, 438; and D Morgan, The Separation of Powers in the Irish Constitution (Dublin, Roundhall and Sweet & Maxwell, 1997) ch 2. 6 B Neuborne, ‘Judicial Review and Separation of Powers in France and the United States’ (1982) 57 New York University Law Review 363, 372. This conception of the doctrine is based on the notion that each branch of government possesses intrinsic institutional features that preclude its effective exercise of the powers that are assigned to a different branch (M Feeley and E Rubin, Judicial Policymaking and the Modern State: How the Courts Reformed America’s Prisons (New York, Cambridge University Press, 1998) 314). 4

Some Initial Observations 137 government.7 All of these conceptions of the separation of powers have implications for the parameters of the judicial role, and the appropriate boundaries between the judicial function and those of the legislature and the executive. In practice, as will become clear, these various rationales for the doctrine have been cited as justifications for judicial deference in relation to the enforcement of socio-economic rights. In his celebrated work on the separation of powers, Michael Vile outlines the ‘ideal type’8 of the separation of powers as follows: To [the legislature, the executive and the judiciary] there is a corresponding identifiable function of government, legislative, executive or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State.9

The ‘ideal-type’ of the doctrine, with its emphasis on total segregation of agencies, functions and persons is very different to the versions operating in contemporary constitutional democracies such as Ireland,10 South Africa,11 Argentina,12 India13 and Colombia.14 Indeed, such a model of 7 For more on this theory of the separation of powers, see D Kennedy, A Critique of Adjudication (fin de siècle) (Harvard, MA, Harvard University Press, 1997) 27. 8 Vile, above n 3, 13. 9 Ibid. 10 For more, see below. 11 For more, see below. 12 According to the Argentine Constitution, federal government is split into three ‘divisions’, legislative, executive and judicial, with each power being vested in a particular branch of government (Congress, the President and the Supreme Courts and such lower courts as Congress may constitute, respectively). The Constitution entrenches these powers in specific provisions (see, eg Argentine Constitution, ss 75, 99 and 116 which detail the ‘powers’ of the different branches). 13 While not explicitly entrenched in the Indian Constitution, the doctrine has been identified as forming part of that constitutional framework (see, eg per Shelat and Grover JJ in His Holiness Kesavananda Bharati Sripadagalavaru v State of Kerala and another 1973 (4) SCC 225, 615). Indeed, the status of a checks-and-balances version of the separation of powers as a constitutive element of the ‘basic structure’ of the Constitution was expressly confirmed in a nine-judge Supreme Court opinion in the 2007 decision of IR.Coelho (Dead) by LRs v State of Tamil Nadu and others 2007 (2) SCC 1. 14 The separation of powers within the Colombian constitutional framework derives from art 113 of the 1991 Constitution which provides that ‘The branches of government are the legislative, the executive, and the judiciary. In addition to the organs which constitute them, there are others, autonomous and independent, for the execution of other functions of the state. The various organs of the state have separate functions but cooperate harmoniously for the realization of their goals’. (Source: http://confinder.richmond.edu/admin/docs/ colombia_const2.pdf) For an extensive judicial analysis of the separation of powers doctrine under the Colombian constitutional framework (including an analysis of the purpose and limits of the control exercised by the Constitutional Court over the legislature), see the Constitutional Court’s decision in T-983A-04. (See also C-251-02, 27–32.) The Court has

138 A Question of Balance? what Neuborne terms ‘mutually exclusive functional enclaves’15 seems incapable of reflecting the reality in which governmental functions inevitably, and frequently desirably, interact and overlap in a range of different contexts. Taking the example of the judiciary, most scholars recognise that courts cannot avoid making law through, amongst other things, the interpretation of statutes, administrative rules, executive orders and prior judicial decisions.16 As Kennedy notes, where a judge resolves a gap, conflict or ambiguity in the system of legal norms, where no amount of reformulation based on the underlying definitions of the words composing the arguably applicable rules produces a deductively valid resolution, then such resolution will involve the ‘making’ of a new rule and application of it to the facts rather than merely the application of a pre-existing rule.17 Indeed, while the ‘ideal-type’ version of the doctrine adopts a ‘negative’ approach to the checking of the power of the agencies of government, this version has also altered over time, first by the amalgamation of the doctrine with the thesis of ‘mixed government’18 and later with the theory of checks and balances on governmental power.19

made it clear on a number of occasions that the distribution of functions under the Colombian constitutional separation of powers model is flexible, rather than absolute or rigid. See, eg C-970-04. 15 Neuborne, above n 6, 370. Neuborne highlights that, ‘Courts enunciate policy whenever they decide a hard case; executive officials enunciate policy, both formally and informally, whenever they administer an even mildly complex scheme; legislatures implement policy whenever they act to advance existing goals (constitutional or otherwise); courts routinely implement policy whenever they act in aid of an existing rule; legislatures frequently resolve disputes about the meaning of existing policies; and the executive resolves factual and legal disputes as a matter of course. Moreover, in addition to the failure of the tripartite model to explain the pragmatic mixture of functions that characterises our [ie the US] system, there is a more serious theoretical difficulty with the watertight division of functions into enunciation, implementation, and particularization. Conceptually, the three functions blend into one another depending upon the level of abstraction and/or generality involved’ (footnotes omitted) (ibid 370–71). In fact, a complete segregation of functions would probably be impossible. 16 R Gambitta, M May and J Foster, ‘Introduction’ in R Gambitta et al (eds), Governing Through Courts (Beverly Hills, CA, Sage Publications, 1981) 9, 10. For a discussion of the approaches adopted by various commentators to the difference between ‘adjudication’ and ‘legislation’, see ch 2 of Kennedy, above n 7. 17 Kennedy, above n 7, 28. 18 Vile defines the thesis of ‘mixed government’ as being founded upon the belief that major interests in society must be allowed to take part jointly in the functions of government, so preventing any one interest from being able to impose its will upon the others (Vile, above n 3, 33). 19 Although now often considered an inherent part of the separation of powers doctrine, the notion has previously been entertained independently of the separation of powers. For instance, Gwyn suggests that it is probable that Montesquieu conceived of the two doctrines as distinct principles (although with important relations between them) (Gwyn, above n 4, 111).

Some Initial Observations 139 The erosion of the ‘pure’ tripartite structure of government has also been exacerbated by the growth of the administrative state and the resultant allocation of functions to branches of government other than those traditionally regarded as entrusted with such.20 However, considering its centrality to objections that are frequently made in relation to the judicial enforcement of socio-economic rights (whether child-specific or otherwise), the ‘practical erosion’ of the doctrine does not mean that it may be disregarded or dismissed. Therefore, the separation of powers must be addressed as part of any discussion of the legitimacy of judicial enforcement of children’s socio-economic rights. As stated in Chapter 1, judicial intervention to give effect to children’s socio-economic rights can arise in a range of different circumstances. It can entail the court prohibiting and/or prescribing specific activities on the part of the state. Most controversially, at the ‘high watermark’ of judicial enforcement of children’s socio-economic rights, courts may set out steps in the form of a mandatory order that the state must take in order to realise the positive obligations imposed by such rights. In doing so, courts may also retain supervisory jurisdiction. There are thus two primary categories of separation of powers-related issues that may, prima facie, arise in relation to the judicial enforcement of children’s socio-economic rights. First, there are objections founded on claims about the nature of the rights themselves, that is, the areas and functions in which they require the courts to become involved. Secondly, there are objections in relation to the specific relief granted by courts seeking to ensure the enforcement of socio-economic rights. I have already highlighted (and rebutted) the claim that socio-economic rights are inevitably positive, resource-dependent rights that require the state to take positive action in order to protect them.21 It has been claimed further from a separation of powers perspective, however, that the programmatic nature of socio-economic rights, requires the courts to become involved in policy matters that normally belong on the agenda of the legislature.22 Commentators have argued that such rights allegedly require courts to make policy not only on the scope of such rights, but also on the method of implementation.23 This results in an usurpation of the authority 20 See, eg the discussion of US courts adopting a ‘policy-making’ role in relation to prison reform in the context of the administrative state in Feeley and Rubin, above n 6. For a more general discussion of the separation of powers doctrine in the context of the administrative state, primarily drawing on UK, US and Irish case law, see E Carolan, The New Separation of Powers (Oxford, Oxford University Press, 2009). 21 For more, see Chapter 1. 22 B De Villiers, ‘Social and Economic Rights’ in D Van Wyk et al (eds), Rights and Constitutionalism: The New South African Legal Order (Oxford, Clarendon Press, 1996) 599, 606. 23 See, eg N Haysom, ‘Constitutionalism, Majoritarian Democracy and Socio-Economic Rights’ (1992) 8 South African Journal on Human Rights 451, 456.

140 A Question of Balance? of the legislature and distortion of the traditional balance of the separation of powers between the judiciary and other branches of government due to the flow of power to the judiciary.24 In addition, while there is general acceptance of the exercise of the judicial functions in striking down unconstitutional legislation, a problem is considered to arise ‘in respect of positive orders by the court, directed at either the executive or the legislature’.25 This is due to the fact that, where the courts make an order requiring the government to implement a particular law or policy, it is arguable that they are essentially exercising executive and legislative power; in doing so, they are encroaching upon the functions of the other branches of government in violation of the separation of powers doctrine. These understandings of the activities entailed by, and the implications of, judicial activity to give effect to children’s socio-economic rights in terms of the separation of powers doctrine, will be considered throughout the course of this chapter. They need to be highlighted at this point, however, in order to give a sense of the issues around which my discussion will be based. THE SEPARATION OF POWERS AND THE JUDICIAL FUNCTION UNDER THE IRISH AND SOUTH AFRICAN CONSTITUTIONS

Before addressing the three questions that constitute my evaluation of whether the separation of powers acts as a bar on the courts giving effect to children’s constitutional socio-economic rights, it is necessary to provide details of the two constitutional frameworks that provide the backdrop to my arguments. South Africa and Ireland are interesting to compare for a range of reasons. Both countries are constitutional democracies. The Irish Constitution (Bunreacht na hÉireann, BNhE) is the oldest in Europe, while the Constitution of the Republic of South Africa (CRSA) is only a decade old. BNhE predates the international human rights discourses (including those regarding socio-economic and children’s rights), while, as highlighted in Chapter 1, the rights provisions of the CRSA have been heavily influenced by them. In practice, although the South African Constitutional Court’s judges directly and rather self-consciously apply and interpret international human rights norms in the context of a constitution which strongly requires the recognition and implementation of these norms, the Irish Constitution

24 See, eg G Hogan, ‘Judicial Review and Socio-Economic Rights’ in W Binchy and J Sarkin (eds), Human Rights, the Citizen and the State: South African and Irish Approaches (Dublin, Roundhall and Sweet & Maxwell, 2001) 1, 8. 25 R Byrne and W Binchy, Annual Review of Irish Law 2001 (Dublin, Roundhall, 2002) 110.

The Separation of Powers and the Judicial Function 141 has not responded to any international socio-economic rights provisions (whether child-specific or otherwise) despite the fact that Ireland is a party to several important international treaties in this area.26 The CRSA specifically provides for a large number of justiciable socioeconomic rights.27 However, the framers of the Irish Constitution included only one express socio-economic right (the right to education) in that document, preferring instead to set out ‘the principles for the State to apply towards the promotion of the people as a whole in the socio-economic field’28 in the form of non-justiciable ‘principles of social policy’.29 26 Ireland has ratified many of the international instruments that have been invoked by advocates bringing socio-economic rights litigation before courts and other decision-making bodies. These include the International Covenant on Economic Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women. Ireland’s dualist system requires that its international obligations be expressly incorporated into domestic law in order for them to be enforceable before the national courts, with art 29(6) of the Constitution stating that: ‘No international agreement shall be part of the domestic law of the State save as may be determined by Parliament’. (For more on the impact of this provision, see, amongst others, the statements made by the Supreme Court in the following decisions: Re Ó Láigléis [1960] IR 93; Application of Woods [1970] IR 154; Kavanagh v Governor of Mountjoy Prison [2002] 3 IR 97; Norris v Attorney General [1984] IR 3; and Crotty v An Taoiseach [1987] IR 713.) This has not occurred in relation to any of the UN human rights instruments that Ireland has ratified and, hence, their provisions (socioeconomic or otherwise) are not directly enforceable by the national courts. The Supreme Court has stated that, in the absence of such incorporation, the principles of international treaty law do not prevail over domestic legislation (see Sumers Jennings v Furlong [1966] IR 183). Furthermore, the Supreme Court has held that, under art 29 of the Constitution, international law confers no rights capable of being invoked by individuals. (See, eg per Fennelly J in Kavanagh v Governor of Mountjoy Prison [2002] 3 IR 97, 126.) However, several judges have been willing to recognise that, while not binding on courts, international agreements may have a persuasive value, and have used such instruments, including the CRC, as an aid to the interpretation of national rules. For more, see Chapter 1, n 135. For more on international law and the Irish Constitution, see G Biehler (ed), International Law in Practice: An Irish Perspective (Dublin, Thompson Roundhall, 2005) 184. 27 See, eg ss 26, 27 and 29 CRSA. In response to claims that socio-economic rights were inherently non-justiciable, the Constitutional Court stated that, ‘[t]hese rights are, at least to some extent justiciable … At the very minimum, socio-economic rights can be negatively protected from improper invasion’ (Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC), para 78). In the case of Government of the Republic of South Africa v Grootboom 2000 (11) BCLR 1169 (CC) (Grootboom), the Constitutional Court went further, saying that: ‘[t]he question is therefore not whether socio-economic rights are justiciable under our Constitution, but how to enforce them in a given case’ (para 20). 28 Constitution Review Group, Report of the Constitution Review Group (Dublin, Stationery Office, 1996) 391. 29 Article 45 provides that ‘[t]he application of those principles in the making of laws shall be the care of the Oireachtas exclusively and shall not be cognisable by any Court under any of the provisions of this Constitution’. Article 45 has been used by the courts as an interpretive instrument with regard to, amongst other things, the identification of unenumerated personal rights under art 40.3 of the Constitution. However, there has been no Supreme Court analysis of the provision. For more on the content and judicial treatment of art 45, see G Whyte and G Hogan (eds), J.M. Kelly: The Irish Constitution, 4th edn (Dublin, Butterworth, 2003)

142 A Question of Balance? In addition to the rights enjoyed by ‘everyone’, the South African Constitution enshrines a whole range of child-specific rights, including socio-economic rights.30 In contrast, the Irish Constitution only contains two express references to the rights of the (born) child31 and the rights of children have been defined as being subsumed into the rights of the family as a whole.32 With the exception of the right to education,33 the socioeconomic rights accorded to children under the Irish Constitution are all unenumerated personal rights primarily guaranteed under article 40.3.1º of the Constitution. BNhE accords paramountcy to parental rights,34 and the consequent subordination of children’s rights and welfare has often been borne out in judicial interpretations and application of its rights provisions.35 As in South Africa, children’s rights (both constitutional and

2077–86, and G Hogan, ‘Directive Principles, Socio-Economic Rights and the Constitution’ (2001) 36 Irish Jurist 175. 30 Section 28 CRSA states that: ‘Every child has the right (a) to a name and a nationality from birth; (b) to family care or parental care, or to appropriate alternative care when removed from the family environment; (c) to basic nutrition, shelter, basic health care services and social services; (d) to be protected from maltreatment, neglect, abuse or degradation; (e) to be protected from exploitative labour practices; (f) not to be required or permitted to perform work or provide services that (i) are inappropriate for a person of that child’s age; or (ii) place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development; (g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only from the shortest appropriate period of time, and has the right to be (i) kept separately from detained persons over the age of 18 years; and (ii) treated in a manner, and kept in conditions, that take account of the child’s age; (h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and (i) not to be used directly in armed conflict, and (ii) to be protected in times of armed conflict’. 31 Article 42.5 BNhE refers to the ‘natural and imprescriptible rights of the child’, while art 44.2.4° BNhE provides that ‘[l]egislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school’. 32 The constitutional rights of the family are set out in arts 41 and 42 BNhE. 33 Article 42.4 BNhE provides that ‘[t]he State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation’. In Crowley v Ireland [1980] IR 102 it was established that (a) this article imposes both a duty to provide free primary education and a right to receive such education; and (b) the article does not necessarily place a duty on the state to provide free primary education itself, but rather enjoins it to provide for such education (eg by funding the availing by the right-holder of such services in some private institution or service). 34 For more on this, see W Duncan, ‘The Constitutional Protection of Parental Rights’ in Constitution Review Group, Report of the Constitution Review Group (Dublin, Stationery Office, 1996) 612; and K Lynch, ‘The Status of Children and Young Persons: Educational and Related Issues’ in S Healy and B Reynolds (eds), Social Policy in Ireland (Dublin, Oaktree Press, 1998) 321, 323–30. 35 This has been particularly evident in cases involving disputes about custody between parents and third parties. Shatter highlights that, in the main, where there is a clash between

The Separation of Powers and the Judicial Function 143 otherwise) have been the subject of much debate in Ireland. However, recent draft wording for a constitutional amendment to explicitly enshrine the rights of the child in BNhE proposed by the Government and the Oireachtas Committee on the Constitutional Amendment on Children in 2007 and 2010, respectively, made no express provision for children’s socio-economic rights.36 A common feature of both constitutional frameworks is the separation of powers. One of the Constitutional Principles with which the provisions of the new South African Constitution had to comply was that there should be ‘a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness’.37 This requirement of a separation of powers, together with a system of checks and balances, was a reaction to government during the apartheid era, during which ‘the Montesquieuan principle of a threefold separation of state power … did not flourish in a South Africa which, under the banner of adherence to the Westminster system of government, actively promoted parliamentary supremacy and domination by the executive’.38 While not expressly entrenched in the South African Constitution,39 the Constitutional Court has observed that the doctrine can be inferred from

the rights of parents and the rights of the child in such cases, it is the parental rights that have been accorded a constitutional superiority (A Shatter, Shatter’s Family Law, 4th edn (Dublin, Butterworth, 1997) 269). 36 See respectively, the Twenty-eighth Amendment to the Constitution Bill 2007 and Oireachtas Committee on the Constitutional Amendment on Children, Final Report (Dublin, Stationery Office, 2010). For an analysis of the 2007 draft wording, see A Nolan, ‘The Battle(s) over Children’s Rights in the Irish Constitution’ (2007) 22(4) Irish Political Studies 495. For an analysis of the latter draft wording, see A Nolan, ‘The Proposed Constitutional Amendment on the Child: An Initial Analysis from a CRC Perspective’, Human Rights in Ireland Blog, www.humanrights.ie. 37 Constitutional Principle VI. 38 Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (‘First Certification Judgment’) para 6. 39 The separation of powers doctrine is set out implicitly under the CRSA in a number of provisions: (i) s 165, which vests the judicial authority of the Republic in the courts and expressly prescribes independence of the judiciary; (ii) s 43, which vests the legislative authority of government in the national sphere in Parliament, the legislative authority of the provincial sphere in the provincial legislatures, and the legislative authority of the local sphere in the Municipal Councils; and (iii) s 85, which vests the executive authority of the Republic in the President, who exercises it together with the members of the Cabinet. Section 125 provides that the executive authority of a province is vested in the Premier of that province, who exercises that power together with the other members of the Executive Council. For an overview of the separation of powers doctrine under the South African Constitution, see S Seedorf and S Sibanda, ‘Separation of Powers’ in S Woolman, T Roux and M Bishop (eds), Constitutional Law of South Africa, 2nd edn (Cape Town, Juta, 2007) 12–1.

144 A Question of Balance? the structure and provisions of the Constitution,40 and ‘has made it clear on more than one occasion that although there are no bright lines that separate the roles of the legislature, the executive and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others41’.42 The Constitution also enshrines the principle of cooperative government and provides that all spheres of government, and all organs of state within each sphere, must respect the constitutional status, institutions, powers and functions of government in the other spheres and not assume any power or function except those conferred on them in terms of the Constitution.43 Furthermore, the different organs of government are obliged to exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere.44 In contrast to the ‘pure’ or ‘ideal-type’ version of the separation of powers delineated above, the functions of the different arms of government are not hermetically insulated from one another in all respects under the CRSA.45 Notably, there is no absolute separation of powers between the judicial function, on the one hand, and the legislative and executive on the other.46 In the First Certification Judgment, the Constitutional Court stated that: The principle of separation of powers, on the one hand, recognises the functional independence of branches of government. On the other hand, the principle of 40 South African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883, paras 21, 22. The constitutional doctrine of separation of powers has also been recognised in cases such as Ex Council, Western Cape Legislature v President of Republic of South Africa 1995 (4) SA 877 (per Chaskalson P, para 52); DeLange v Smuts NO 1998 (3) SA 785 (per Ackerman J, paras 43–48 and 60); Pharmaceutical Manufacturers Association of South Africa v President of South Africa, 2002 (2) SA 674; 2000 (3) BCLR 241; 2011 (7) BCLR 651 (CC) (per Chaskalson P, para 45); Re Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151 (CC); 2001 (1) BCLR 652 (CC) (per Chaskalson P, paras 37–38). 41 Ferreira v Levin NO and others; Vryenhoek and others v Powell NO and others 1996 (1) SA 984 (CC); (1996) (1) BCLR 1 (CC), paras 180, 183; South African Association of Personal Injury Lawyers v Heath and others 2001 (1) SA 883 (CC); 2001 (1) BCLR 77 (CC), para 46; Soobramoney 1997 (12) BCLR 1696, para 29; Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), para 41; Dawood and another v Minister of Home Affairs and others; Shalabi and another v Minister of Home Affairs and others; Thomas and another v Minister of Home Affairs and others 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC), paras 63–64; National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs and others 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC), para 66. 42 TAC, above n 2, para 98. For a summary of the operation of the separation of powers under the South African Constitution and as applied by the Constitutional Court, see P Langa, ‘“A Delicate Balance”: The Place of the Judiciary in a Constitutional Democracy’ (2006) 22 South African Journal on Human Rights 1. 43 Section 41(e) and (f) CRSA. 44 Section 41(g) CRSA. 45 For instance, the Constitution expressly provides that national legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court (s 172(2)(c) CRSA). 46 See, eg S v Dodo 2001 (3) SA 382 (CC), para 22. Here, the Constitutional Court went on to state that ‘When the nature and process of punishment is considered in its totality, it is apparent that all three branches of the state play a functional role and must necessarily do so’ (ibid).

The Separation of Powers and the Judicial Function 145 checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another.47

The Court explicitly acknowledged that no constitutional scheme can reflect a complete separation of powers: ‘the scheme is always one of partial separation’.48 Crucially in terms of my analysis, in TAC, while urging that all arms of government should be sensitive to and respect this separation between the roles of the respective governmental branches, the Court continued to state that this does not mean that courts cannot or should not make orders that have an impact on policy.49 The CRSA also fails to provide for a complete separation of personnel. While under the US Constitution, separation of personnel occurs at both the institutional level and in the composition of the personnel, under the South African Constitution the executive originates from the legislative branch of government and is ultimately accountable to it.50 However, like its Irish counterpart, the independence and separation of the judicial organ from the executive and the legislative branches is strongly entrenched.51 Although they are political appointees, judges are not selected from either the executive or legislative branch52 and it is expressly stated that the courts are independent and subject only to the Constitution and the law.53 The last five years have seen widespread concerns about perceived governmental desire to interfere with judicial independence and the operation of the judicial function in South Africa. This chapter, however, reflects the constitutional law position as it currently stands.54 47

First Certification Judgment, above n 38, para 109. Ibid. TAC, above n 2, para 98. 50 Z Motala, ‘Towards an Appropriate Understanding of the Separation of Powers, and Accountability of the Executive and Public Service under the New South African Order’ (1995) 112 South African Law Journal 503, 507. See ss 86, 91(3) and 92(2) CRSA. 51 In the First Certification Judgment, above n 38, the Constitutional Court stated that ‘[w]hat is crucial to the separation of powers and the independence of the Judiciary is that the Judiciary should enforce the law impartially and that it should function independently of the Legislature and the Executive’ (para 123). See also per Chaskalson P in South African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883, para 25; 2001 (1) BCLR 77 (CC). 52 Judges of the Constitutional Court are appointed by the President after consultation with the leaders of parties represented in the National Assembly and the Judicial Service Commission, while other judges are appointed by the President on the advice of the Judicial Service Commission (s 174(6) CRSA). 53 Section 165(2) CRSA. 54 See, eg the versions of the Judicial Service Commission Amendment Bill and the 14th Constitutional Amendment Bill that were sent to judges for comments in the autumn of 2009. These Bills contained a range of proposals in relation to the judiciary, including the conferral of general (as opposed to exclusively constitutional) jurisdiction on the Constitutional Court, the executive taking responsibility for administering the courts, and the requirement that judges disclose all financial interests. These ANC-proposed Bills were initially shelved in 2005 following protests about their potential impact for judicial independence. They were revived following the adoption of the ‘Transformation of State and Governance’ resolution at the party’s national conference in December 2007. The ANC has argued that such measures are 48 49

146 A Question of Balance? Like the CRSA, BNhE does not specifically prescribe a ‘separation of powers’. It does, however, enumerate the powers of government as being of three distinct types: legislative, executive and judicial;55 entrenches the different arms of government in varying degrees; and prescribes their sovereignty in their own areas.56 Amongst other things, it provides that: no law is to be made save by the Oireachtas (the national parliament);57 the ‘executive power of the State’ (in both domestic and foreign affairs) is vested in the government;58 and only the courts may exercise the judicial function save in the case of ‘limited functions’ in the non-criminal field59 (for instance, public inquiries organised by the Oireachtas). The Irish courts have recognised on numerous occasions that the doctrine forms part of the Constitution60 and it has been claimed by the Supreme Court that the doctrine flows from article 6,61 the first paragraph of which states that: [a]ll powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final

necessary in order to speed up transformation of the still largely-white and male judiciary. However, the proposed changes are viewed by many as threatening judicial independence and have been criticised by judges themselves. Some commentators have suggested that the legislative proposals are a product of the government’s irritation with the Constitutional Court’s finding against it in a number of high-profile cases with major financial implications. (See, eg R Kadalie, ‘“Contrary” Rulings explain ANC assault on judges’, Business Day, 12 May 2005.) As of December 2010, it seems likely that the most serious concerns around the executive attempts to interfere with the judicial function have been largely dissipated due to changes made to the Superior Courts Bill 2010 and other legislation (including a revised Constitutional Amendment Bill) which were approved by the Cabinet in December 2010. 55 Whyte and Hogan, above n 29, 108. Morgan has argued that ‘the shape and nature of the Constitution, as interpreted, militate rather definitely against the notion that all governmental functions can be compressed into one or other of three types’ (Morgan, above n 5, 28). However, he continues to say that, despite this, ‘most of the significant functions do fall within the three classic types’ (ibid 29). 56 Whyte and Hogan, above n 29, 109. 57 Article 15.2. BNhE. 58 Article 28.2 BNhE. 59 See arts 34.1 and 37.1 BNhE. 60 For instance, in Re Haughey [1971] IR 217, Ó Dálaigh CJ stated on behalf of the Supreme Court that ‘[t]he Constitution of Ireland is founded on the doctrine of the tripartite division of the powers of government—legislative, executive and judicial’ (at 250). For an account of the operation of the separation of powers doctrine in Irish constitutional law, see Whyte and Hogan, above n 29, 108–11. 61 See, eg per Finlay CJ and per O’Flaherty J in Attorney General v Hamilton (No 1) [1993] ILRM 81, 96 and 123, respectively. See also O’Byrne J in Buckley and others (Sinn Feín v Attorney General and another) [1950] IR 67, 81 and Fitzgerald CJ in Boland v An Taoiseach [1974] IR 338, 361–62 for further examples of the Supreme Court holding that art 6 is the basis of the Irish constitutional doctrine of separation of powers.

The Separation of Powers and the Judicial Function 147 appeal, to decide all questions of national policy, according to the requirements of the common good.62

As in South Africa, the presence of the doctrine in the Irish Constitution may be regarded as a reaction to experience under a prior oppressive regime. This was articulated in Melling v Ó Mathghamhna,63 where Chief Justice Ó Dálaigh noted that: [i]f our Constitution [has] … adopted the theory of the tripartite separation of the powers of government with express limitations on the powers alike of Legislature and Executive over the citizen, the reason is not unconnected with our previous experience under an alien government whose parliament was omnipotent and in whose executive lay wide reserves of prerogative power.64

Like the CRSA, BNhE contains a relatively ‘weak’ version of the separation of powers doctrine with neither full separation of personnel nor of functions between all branches. With regard to separation of personnel, the Executive is drawn from the legislature and is responsible to that body.65 In practice, the Supreme Court has expressly recognised that a total segregation of functions is not a feature of the Irish separation of powers doctrine. In Lynham v Butler (No 2),66 Johnston J stated that: It has been found through universal experience that this division of governmental functions cannot, as a matter of practical polity, be carried out to its logical conclusion and can only take place as an approximation. In no system of which I have any knowledge has it been found to be possible to confine the legislative, the executive and the judicial power each in what I may call its own water-tight compartment; and, if such a thing were to be attempted, the result, I fear, would be so much the worse for the compartment.67

Again, as with the CRSA, the separation of the judicial power is by far the most significant aspect of the separation of powers under BNhE,68 being more carefully entrenched than the other powers, and in more detail.69 The judiciary is also strictly separated from the other branches of government in terms of personnel. Article 35.2 BNhE specifies that all judges are to be independent in the exercise of their judicial functions and subject only to

62 The second paragraph of art 6 goes on to say that ‘These powers of government are exercisable only by or on the authority of the organs of state established by this Constitution’. 63 Melling v Ó Mathghamhna [1962] IR 1. 64 Ibid 39. 65 Article 28.4.1° BNhE. 66 Lynham v Butler (No 2) [1933] IR 74. While this case arose in the context of the Irish Free State Constitution of 1922, the statements quoted above apply equally to the separation of powers doctrine contained in the 1937 Constitution. 67 Ibid 121. For a useful summary of the ways in which the arms of government in Ireland are vulnerable to one another, or operate in some cases outside their own sphere, see Whyte and Hogan, above n 29, 138–39. 68 Morgan, above n 5, 29. 69 Whyte and Hogan, above n 29, 139.

148 A Question of Balance? the Constitution and the law.70 While judges are political appointees and are removable by the legislature,71 they are specifically barred from being members of either House of the Oireachtas.72 Given this work’s concentration on the courts, it is necessary to focus in some detail on the parameters of the judicial function under the South African and Irish constitutional frameworks, respectively. Section 1 CRSA states that ‘The Republic of South Africa is one, sovereign, democratic state founded on the following values … (c) Supremacy of the constitution and the rule of law’. Section 2 continues to say that the Constitution is the supreme law of the Republic: ‘law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’. Elsewhere it is provided that the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.73 All spheres of government are obliged to observe and adhere to it and must conduct their activities within the parameters it sets out.74 Under the South African Constitution, the judiciary plays an indispensable role as the guardian of the constitution and its ethos and values.75 Here, I focus on the Constitutional Court rather than on the lower courts because it is the ultimate adjudicator on constitutional matters76 and its confirmation is necessary for an order of unconstitutionality by another court to have any force.77 It also has a broader constitutional mandate than other courts in terms of the matters it may deal with.78 The CRSA provides that the judicial authority of the Republic is exclusively vested in the courts.79 When deciding a constitutional matter, which includes any issue involving the interpretation, protection or enforcement of the Constitution,80 the courts are obliged to declare any law or conduct that is inconsistent with the Constitution invalid to the extent of its inconsistency.81 In doing so, they may grant appropriate relief82 and make

70 In September 2010, the Minister for Justice unveiled the Judicial Council Bill 2010. The Bill will provide for the establishment of two new bodies: a Judicial Council, to promote education and the independence of the judiciary, and a Judicial Conduct Committee, which will include a mechanism for dealing with complaints against judges. It remains to be seen, however, what form this legislation will ultimately take. 71 Article 35.4 BNhE. 72 Article 35.3 BNhE. 73 Section 8(1) CRSA. 74 Ibid s 40(2). 75 G Devenish, A Commentary on the South African Constitution (Durban, Butterworth, 1998) 220. 76 Section 167(3) CRSA. 77 Ibid s 172(2)(a). 78 Ibid s 167(4) reserves certain functions to the Constitutional Court. 79 Ibid s 165(1). 80 Ibid s 167(7). 81 Ibid s 172(1)(a). 82 See ibid s 38.

The Separation of Powers and the Judicial Function 149 any order that is just and equitable.83 The Constitutional Court stated in Fose v Minister of Safety and Security84 that ‘[a]ppropriate relief will in essence be relief that is required to protect and enforce the Constitution’.85 The Court highlighted the range of remedies available to the Court, stating that ‘depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced’.86 Furthermore, it signalled that, if necessary, ‘the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights’.87 The Court emphasised the fact that an appropriate remedy must mean an effective remedy, as, in the absence of such, ‘the values underlying and the rights entrenched in the Constitution cannot properly be upheld or enhanced’; the courts have a ‘particular responsibility in this regard’ and ‘are obliged to “forge new tools” and shape innovative remedies, if needs be, to achieve this goal’.88 In the later case of Mohamed and another v President of the Republic of South Africa and others, the Court stated that to stigmatise ‘an appropriate order on the relevant organs of state in South Africa to do whatever may be within their power to remedy the wrong here’ (including a mandatory order) as a breach of the separation of state power as between the executive and the judiciary ‘would be to negate a foundational value of the Republic of South Africa, namely supremacy of the Constitution and the rule of law’.89 The CRSA expressly provides for the institution of judicial review of legislative and executive action, stating that the High Court, Supreme Court and Constitutional Court90 may review laws passed by the legislature to ensure that they conform with constitutional requirements.91 The Constitutional Court makes the final decision on whether an Act of Parliament, a provincial Act or conduct of the President is constitutional.92 Furthermore, only

83

Ibid s 172(1)(b). Fose v Minister of Safety and Security 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC). 85 Ibid para 19. 86 Ibid. For a discussion of remedies available under the CRSA, see M Bishop, ‘Remedies’ in S Woolman, T Roux and M Bishop (eds), Constitutional Law of South Africa, 2nd edn (Cape Town, Juta, 2007) 9–1. 87 Fose v Minister of Safety and Security, above n 84. 88 Ibid para 69. 89 Mohamed and another v President of the Republic of South Africa and others 2001 (3) SA 893 (CC), para 72. In Bel Porto School Governing Body and others v Premier of the Western Cape Province and another 2002 (3) SA 265 (CC), the Court stated that ‘[t]he flexibility in the provision of constitutional remedies means that there is no constitutional straightjacket such as suggested in the High Court or in argument in this Court. The appropriateness of the remedy would be determined by the facts of the particular case’ (para 181). 90 Sections 172(2) and 167(5) CRSA. 91 Ibid s 172(1)(a). 92 Ibid s 167(5). However, this may simply involve confirming the order of unconstitutionality by the Supreme Court of Appeal or a High Court in accordance with ibid s 172(2)(a). 84

150 A Question of Balance? the Constitutional Court may decide that Parliament or the President has failed to fulfil a constitutional obligation.93 The Court is also entitled to decide on the constitutionality of any Amendment to the Constitution.94 The CRSA also provides for abstract review of legislation where a law is referred to it by the President,95 by members of the National Assembly,96 the Premier or a province97 or members of a provincial legislature.98 The power of the courts to invalidate unconstitutional legislative and executive conduct does not appear to be waivable or discretionary. The section providing for this power states that ‘[w]hen deciding a constitutional matter within its power, a court must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency’ (emphasis added).99 Crucially for the purposes of the analysis later on in this chapter, this would seem to indicate that judicial deference or inaction in the face of unconstitutional activity by the other branches of government would amount to a failure of that organ to carry out the constitutional responsibilities. But what of the judicial function under the Irish Constitution? There is no bar under the Irish Constitution on the vesting of non-judicial functions in the courts or involving the judges in extra-curial activities, nor is there a constraint to prevent a limited exercise of the judicial function from being vested in the executive and legislative organ.100 However, it is clear, both from the text of the Constitution and judicial statements, that the High Court and Supreme Court have a special, exclusive role in interpreting and enforcing both the law and the Constitution.101 As Chief Justice Finlay highlighted in the seminal Crotty case, this entails both a ‘right and duty’ to intervene in the activities of the legislature and

93

Ibid s 167(4)(e). Ibid s 167(4)(d). 95 Ibid s 79(4)(b). For more on abstract review under the CRSA, see I Currie and J De Waal, The New Constitutional and Administrative Law, Volume 1: Constitutional Law (Cape Town, Juta, 2001) 191–98. 96 Section 80 CRSA. 97 Ibid s 121(2)(b). 98 Ibid s 122. 99 Ibid s 172(1)(a). 100 Morgan, above n 5, 30. This is also true of the South African judiciary, as was stated in South African Association of Personal Injury Lawyers v Heath 2001 (1) SA 883; 2001 (1) BCLR 77 (CC), where the Court made it clear that, in appropriate circumstances, judicial officers can ‘no doubt’ preside over commissions of inquiry without infringing the separation of powers contemplated by the South African Constitution (para 23). However, ‘[t]here are limits to what is permissible. Certain functions are so far removed from the judicial function, that to permit judges to perform them would blur the separation that must be maintained between the judiciary and other branches of government’ (para 35). 101 For instance, in Attorney General v Hamilton (No 1), McCarthy J stated that ‘[i]t is particularly within the jurisdiction of the Courts to declare what the Constitution means’ ([1993] ILRM 81, 115). 94

The Separation of Powers and the Judicial Function 151 the executive in certain circumstances.102 With regard to the legislature, the court is empowered, and required, to examine the validity of any impugned legislative enactment and to condemn that legislation (or any part of it) that it finds to be unconstitutional.103 In the same judgment, he made it clear that the Court is required under article 26 of the Constitution to carry out abstract review of legislation referred to it by the President that has been passed (or deemed to have been passed) by both Houses of the Oireachtas, in order to decide whether that Bill or any specified provision or provisions of it are unconstitutional.104 With regard to the executive, the Chief Justice stated that the Supreme Court has, on appeal from the High Court ‘a right and duty to interfere with the activities of the executive in order to protect or secure the constitutional rights of individual litigants where such rights have been or are being invaded by those activities or where activities of the executive threaten an invasion of such rights’.105 The superior courts in Ireland are thus required to enforce the Constitution

102 Crotty v An Taoiseach [1987] ILRM 400, 449. The duty of the courts to intervene in the case of a violation of the Constitution by another governmental organ has been reiterated on numerous occasions by the Irish courts. For examples of such statements, see the comments of Griffin J in Boland v An Taoiseach [1974] IR 338, 370–71 and his comments in Crotty v An Taoiseach [1987] ILRM 400, 792. 103 This power and duty is vested by arts 15.4, 34.3.2° and 34.4.4° BNhE (per Finlay CJ in Crotty v An Taoiseach, above n 102, 449). 104 Ibid. 105 Ibid. According to Finlay CJ, this right of intervention is expressly vested in the High Court and Supreme Court by the provisions of arts 34.3.1° and 34.4.3° BNhE and impliedly arises from the form of the judicial oath contained in art 34.5.1° (ibid). The obligation of the courts to intervene where the government is in violation of the Constitution has been highlighted in a large number of cases. In McKenna v An Taoiseach (No 2) (1995) 2 IR 10 32, Hamilton CJ stated that previous authorities established the following: ‘The Courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions provided that it acts within the restraints imposed by the Constitution on the exercise of such powers. If, however, the Government acts otherwise than in accordance with the provisions of the Constitution and in clear disregard thereof, the Courts are not only entitled but obliged to intervene. The Courts are only entitled to intervene if the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred on it by the Constitution. Having regard to the respect which each of the organs of Government must pay to each other, I am satisfied that where it is alleged that either the Oireachtas or the Government has acted other than in accordance with the provisions of the Constitution, such fact must be clearly established’ (ibid 32). At first glance, the phrase ‘clear disregard’ in para 3 of this quotation would seem to mean a conscious and deliberate decision by the organ of state to act in breach of its constitutional obligations accompanied by bad faith or recklessness, (see, eg the interpretation adopted by Murray J in TD, above n 1, which is discussed below). However, it is clear from the second and fourth paragraphs of this passage, as well as from a consideration of the authorities relied on by Hamilton CJ in making it (particularly Crotty v An Taoiseach) that he envisages the duty of the court to intervene to protect constitutional rights as arising in situations including those where the government acts otherwise than in accordance with the Constitution or where an individual comes before the courts and establishes that action on the part of the executive has breached, or threatens to breach, any of his constitutional rights.

152 A Question of Balance? both through monitoring actions of the legislature and the executive and by invalidating those acts which violate the Constitution. Chief Justice Finlay’s statements in Crotty have been criticised for collapsing the distinction between the principle of constitutional supremacy and the separation of powers doctrine.106 However, they could equally be regarded as a statement of one aspect of the courts’ duty or function under the separation of powers doctrine in BNhE, that is, to ensure that the principle of constitutional supremacy is respected by all branches of government. I will return to this point below. The relationship between the principle of constitutional supremacy and the separation of powers doctrine was highlighted in McGimpsey v Ireland.107 In that case, Barrington J of the High Court stated that ‘our system of constitutional government is based on a separation of powers between the legislative, executive and judicial organs of government, each of which is supreme within its own domain and all of which are subject to the Constitution’ (emphasis added).108 The Irish courts are not expressly granted the same broad discretion in formulating remedies for constitutional violations as the South African courts are.109 However, in a celebrated ruling, the Supreme Court asserted that it has a broad jurisdiction to protect the constitutional rights of citizens, stating that, ‘no one can with impunity set these rights at nought or circumvent them, and the courts’ powers in this regard are as ample as the defence of the Constitution requires’.110 In a later case, the Court stated further that ‘[w]here the people by the Constitution create rights against the State or impose duties upon the State, a remedy to enforce these must be deemed to be also available’.111 A 1997 judgment involving the constitutional rights of a child with a serious personality disorder saw Chief Justice Hamilton state that: [it] is part of the courts’ function to vindicate and defend the rights guaranteed by Article 40, Section 3. If the courts are under an obligation to defend and vindicate the personal rights of the citizen, it inevitably follows that the courts have the jurisdiction to do all things necessary to vindicate such rights.112

106 See, eg Morgan who states that ‘the stress in this passage is on the courts’ control of the legislature and the executive—not on the basis that these organs are purporting to exercise the judicial function; but because they are exceeding the Constitution even in relation to their own (legislative and executive) functions’ (Morgan, above n 5, 34). 107 McGimpsey v Ireland [1988] IR 567. 108 Ibid 581. 109 See the comments on s 172(1)(b) CRSA above. 110 Per Ó Dálaigh CJ in State (Quinn) v Ryan [1965] IR 70, 122. 111 Per Walsh J in Byrne v Ireland [1972] IR 241, 281. See further comments by Walsh J in the same case, at 279–80. For similar comments, see per Budd J in Company of Ireland Ltd v Fitzpatrick (No 2) [1961] IR 345, 368. 112 DG v Eastern Health Board and others [1997] 3 IR 511, 522. There were other judicial statements in cases prior to TD involving children’s constitutional rights indicating that, where

The Separation of Powers and the Judicial Function 153 It is thus clear that both the South African and Irish constitutional frameworks and jurisprudence reflect a flexible, checks-and-balances version of the separation of powers doctrine, under which the courts are accorded a key role to play in terms of ensuring that the constitution (including children’s socio-economic rights) are upheld by all branches of government.

The Context for Judicial Action: The TD and TAC Cases As stated above, the TAC and the TD cases involved courts considering whether, and how, to give effect to children’s constitutional socio-economic rights. The key rights at issue in TAC were the right of everyone (including children) to have access to health services and the right of children to basic healthcare services,113 set out in sections 27 and 28(1)(c) of the South African Constitution respectively, although both courts that addressed the case made their decision on the basis of the right of ‘everyone’, rather than in terms of the child-specific provision.114 TD centred on the unenumerated personal right of children with various behavioural disorders to adequate services and facilities to cater for their special needs.115

appropriate, the court was entitled to grant injunctive relief to ensure the enforcement of children’s constitutional socio-economic rights. See, eg DD v Eastern Health Board, Costello J, High Court (Unreported, 3 May 1995) 7; Comerford v Minister for Education [1997] 2 ILRM 134, 147–48. 113 The applicants also claimed violations of: the constitutional right to equality and the prohibition on unfair discrimination (s 9 CRSA); the right to life (s 11 CRSA); the rights to dignity of women and their newly born infants (s 10 CRSA); the provisions outlining the basic values and principles governing public administration (s 195(1), (2) CRSA); the right of the women concerned to make choices and decisions concerning reproduction (s 12). However, neither the High Court nor the Constitutional Court focussed on these issues. 114 TAC, above n 2, was undoubtedly primarily a children’s rights case. The ultimate goal of the action was to ensure non-transmission of the HIV virus from the mother to the born child and the ‘healthcare service’ being sought was one that would have a more direct impact on the health of the child, than on that of the mother. This view is borne out by an interview with the chief counsel in the case who stated that: ‘I think it is a case about children’s rights. It’s about the child’s right of access to healthcare services and that’s why it goes to some lengths to put right the misunderstandings in Grootboom. Grootboom was misunderstood by a lot of people as meaning children have no rights under s 28—that the State has no obligations under s 28, and all the state obligations are under ss 26 or 27. I think TAC puts it right really and says that, “no, no, it’s true that under s 28, the primary obligation rests on the parents and on the state to provide an environment in which the states can carry out their duties. But if the parents don’t do it, the State has a duty”. I believe it’s a children’s health rights case’. Interview with Geoff Budlender, Legal Resources Centre, in Cape Town, 21 December 2005. For more on this aspect of the Grootboom and the TAC decisions, see Chapters 3 and 6. 115 The right at issue in TD, above n 1, was an unenumerated personal right guaranteed under art 40.3.1° BNhE in accordance with the construction of that article adopted by the High Court and Supreme Court in Ryan v Attorney General [1965] IESC 1. The unenumerated rights of the child were first dealt with at length in G v An Bord Uchtála [1980] IR 32. Having upheld the decision of the High Court finding in favour of the right of a parent to the custody and control of the upbringing of a daughter, O’Higgins CJ in the Supreme Court

154 A Question of Balance? The Irish High Court in TD granted the orders sought by the applicants (a sample of a large group of non-offending children in the care of local authorities, whose special needs were not being met by the state), directing the state ‘to take all steps necessary and to do all things necessary to facilitate the building and opening of secure and high support units’116 in set locations with a set number of beds and in accordance with a fixed timescale. In doing so, the judge noted that the number of units, their location and the dates set out in the orders were those specified by the officials who had provided the court with evidence on behalf of the respondent Minister.117 The court granted the relief in question in the face of consistent failure on the part of the relevant state authorities, first, to give effect to declaratory orders granted in previous similar cases and, secondly, to comply with undertakings adopted by those authorities in response to the earlier orders, in a timely manner. In TAC, the applicants sought to require the state to produce and implement an effective national programme to prevent or reduce mother-to-child transmission of HIV. They also challenged the respondents’ decision not to make nevirapine available outside 18 pilot test sites which, when operating, would serve about 10 per cent of the population.118 This was despite clear

observed that: ‘The child also has natural rights ... Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his/her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the provisions of Article 42.5 of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons’ (ibid 55–56). Statements to a similar effect were made by other members of the Supreme Court (see, eg per Walsh J, at 69 and per Henchy J, at 91). This ruling was built on in the High Court decision of FN v Minister for Education [1995] 1 IR 409, which is discussed further in Chapter 3, n 73. The state did not appeal FN and, in the subsequent case of DD v Eastern Health Board, above n 112, involving a disturbed 11-year-old boy, the Eastern Health Board did not dispute that it owed a constitutional duty to the child to meet his special needs and accepted that it was in breach of this constitutional duty. Although the High Court’s ruling in TD was undoubtedly founded on the decision in FN, the exact phrasing of the right being asserted in TD and its relationship to the right set out in FN varied slightly in both party submissions and the individual judgments of the various Supreme Court judges. According to the children’s legal representatives, the right being asserted in TD was ‘positive in nature, ie a right to have provided adequate services and facilities catering for the special needs of the applicants’ (per Keane J, para 53). One judge referred to the right claimed on behalf of each of the applicants as ‘a right to be placed and maintained in secure residential accommodation so as to ensure, so far as practicable, his or her appropriate religious and moral, intellectual, physical and social education’, which he described as ‘broadly similar’ to the right asserted in FN (per Keane CJ in TD, above n 1, paras 57 and 61, respectively). Another judge stated that TD concerned ‘addressing the constitutional obligation owed by the state to minors in need of special care facilities as declared in FN’ (per Murray J, paras 197 and 203). 116 TD v Minister for Education [2000] IEHC 21, para 33. See ibid for the precise scope of the orders sought. 117 Ibid para 34. 118 For an account of the events leading up to the legal action, see M Heywood, ‘Preventing Mother to Child Transmission in South Africa: Background, Strategies and Outcomes of the

Giving Effect to Children’s Socio-economic Rights 155 evidence that that drug had a significant impact on levels of mother-to-child transmission of the virus.119 Botha J of the High Court of North Gauteng granted a declaratory order stating that the respondents, the national Minister of Health and the Members of the Executive Council (MECs) for Health of the nine Provinces, were: obliged to make Nevirapine [an antiretroviral] available to pregnant women with HIV who give birth in the public health sector, and to their babies, in public health facilities to which the respondents’ present programme for the prevention of mother-to-child transmission (PMTCT) of HIV has not yet been extended, where in the judgment of the attending medical officer, acting in consultation with the medical superintendent of the facility concerned, this is medically indicated, which shall at least include that the woman concerned has been appropriately tested and counselled.120

He then handed down a mandatory order compelling the respondents to do so.121 The court also directed the respondents to plan an effective comprehensive national programme to prevent or reduce the mother-to-child transmission of HIV, including the provision of voluntary counselling, testing and, where appropriate, nevirapine or other appropriate medicine, and formula milk for feeding. Finally, the respondents were required to report back to the court within a set period on the steps they had taken to plan an effective comprehensive national PMTCT programme. In both cases, the state appealed the decision of the respective High Court. The ultimate response of the Irish and South African apex courts will be considered below as I move on to discuss the three central questions addressed in this chapter. GIVING EFFECT TO CHILDREN’S SOCIO-ECONOMIC RIGHTS: PART OF THE TRADITIONAL JUDICIAL FUNCTION?

The customary view of the judicial function in a liberal, constitutional democracy is the determination of facts, and the application and interpretation of law contained in the constitution or created by the legislature. This is founded on the notion that judging must be in accordance with the

Treatment Action Campaign Case Against the Minister of Health’ (2003) 19 South African Journal on Human Rights 278. 119 See, eg WHO Technical Consultation on Behalf of the UNFPA/UNICEF/WHO/ UNAIDS Inter-Agency Task Team on Mother-to-Child-Transmission of HIV, New Data on the Prevention of Mother-to-Child-Transmission of HIV and their Policy Implications: Conclusions and Recommendations (Geneva, WHO, 2000). 120 Treatment Action Campaign and others v Minister of Health and others (2001) SACLR LEXIS 123; (2002) (4) BCLR 356 (T), 85–86. All quotes and page references are taken from the former source. 121 Ibid 86.

156 A Question of Balance? ‘rule of law’ principle.122 In light of this understanding of the judicial role, I will consider whether the courts’ giving effect to children’s socio-economic rights, particularly in the context of a state failure to take positive steps to fulfil such rights, amounts to an encroachment by the judiciary on the functions of the other branches of government, as provided for under a ‘traditional’ notion of the separation of powers. In other words, can it be argued that, in acting in such a way, the courts do no more than exercise the ‘traditional’ judicial law-interpretation or law-application function and thus do not impinge upon, or exercise the functions of, other branches of government?

The Nature of Socio-economic Rights: Alleged Implications for the Separation of Powers My first step is to consider the separation of powers issues raised by the alleged nature of children’s socio-economic rights and specifically those that arise in relation to the judicial enunciation and application of the positive obligations imposed by such rights. It has been argued that when dealing with constitutional socio-economic rights, the courts can avoid violating the separation of powers by refusing to rule on political questions that fall within the sphere of the legislature. However, once political decisions have been taken, the courts are entitled to use these constitutionally enshrined rights as benchmarks, in order to review legislative and executive acts and to judge their compliance with the rights guaranteed in the constitution.123 If this stance were to be adopted by the courts, there is little doubt that they would avoid violating the separation of powers doctrine. But such an approach fails to deal with a situation where it is inaction rather than action on the part of the government that causes a violation; for instance, in circumstances in which government has failed to protect and/or fulfil children’s socio-economic rights.124

122 The content of the ‘rule of law’ is hotly contested. For an account and discussion of the different meanings accorded to the term by different commentators, see R Fallon, ‘The Rule of Law as a Concept in Constitutional Discourse’ (1997) 97 Columbia Law Review 1 and J Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ (2002) 21 Law and Philosophy 137. For an overview of core aspects of the rule of law, see B Tamanaha, On the Rule of Law (Cambridge, Cambridge University Press, 2004). In this book, I borrow a formalist definition of the rule of law from Waldron, which stresses certain formal features of legalistic rule, including prospectivity, generality, consistency, publicity, practicability and relative constancy (J Waldron, ‘“Constitutional” Democracy or Constitutional Democracy’, paper presented at conference on Accountability and Representation in European Democracy, Center for European Studies, Harvard University, 2–3 May 2003, at 9 (on file with J Waldron). 123 De Villiers, above n 22, 628. 124 For more on the obligations of the state to protect and fulfil rights, see Chapter 1.

Giving Effect to Children’s Socio-economic Rights 157 Admittedly, the power to ensure that the other branches of government respect the constitution has traditionally been regarded as being limited to judicial review of and invalidation of unconstitutional legislation or policy. However, the assertion that courts should limit themselves to reviewing state action is unsustainable for a number of reasons. First, it ignores the problem of distinguishing action from inaction; for instance, many, if not most, examples of ‘inaction’ can be recast as examples of ‘action’. Secondly, it has been pointed out that the philosophical justification for restricting the courts to focussing on action rather than inaction is founded on the notion of the primacy of narrow understandings of individual autonomy over societal values (eg cooperation, participation, mercy) and the premise that all individuals are on an equal footing and can fend for themselves without the assistance of government.125 These presumptions also form the basis for the view of rights as correlated to negative duties on the part of the state.126 Adherence to the action/inaction dichotomy ignores the ‘government’s pervasive influence through regulatory action and inaction, its displacement of private remedies, and, indeed, its monopoly over some forms of relief’, as well as the fact that government can harm by both what Bandes terms its ‘inaction and inadequate action’.127 This point is particularly important in light of the growth of the administrative state. Furthermore, as a result of global trends towards privatisation, deregulation and globalisation, nonstate actors are ever more likely to be both providers of key socio-economic rights-related goods and services and violators of such rights. Given this reality, the state has an increasingly important role to play in controlling non-state actors and in preventing and punishing socio-economic rights violations committed by them. Ultimately, regardless of whether a socioeconomic-related service is provided by the state or by a private actor, the state ultimately remains constitutionally responsible for ensuring the realisation of socio-economic rights. Objections to the courts reviewing governmental inaction are frequently based on a belief in status quo neutrality and an acceptance of existing distributions.128 Under such a view, governmental inaction is neutral and

125 S Bandes, ‘The Negative Constitution: A Critique’ (1990) 80 Michigan Law Review 2271, 2316. 126 For more on this understanding of rights, see Chapter 1. 127 Bandes, above n 125, 2283–84. 128 For an explanation of ‘status quo neutrality’, see C Sunstein, The Partial Constitution (Harvard, MA, Harvard University Press, 1993) 3–4. Pieterse has observed that, ‘legal liberalism tends to view as “neutral” (and accordingly as “normal”) the costs and obligations inherent in the vindication of civil and political rights, on the basis that respect for these rights is integral to the unhindered functioning of the liberal state’ (M. Pieterse, ‘Coming to Terms with Judicial Enforcement of Socio-Economic Rights’ (2004) 20 SAJHR 383, 397).

158 A Question of Balance? legally unobjectionable.129 Thus, it does not furnish a basis for judicial intervention.130 This approach effectively privileges the ‘haves’ over the ‘have nots’. As the Canadian Supreme Court has highlighted, ‘vulnerable groups will claim the need for protection by the government, whereas other groups and individuals will assert that the government should not intrude’.131 Indeed, the view that governmental obligations only extend to the avoidance of violating rights by action, and the notion of rights as negative freedoms founded on the rationality and autonomy of the right-bearer, contrasts sharply with the transformative and redistributory vision underlying children’s socio-economic rights. As highlighted in Chapter 3, the latter are entitlements to social and economic goods founded on the child’s status as a human person. They clearly envisage a duty on the state to ensure their realisation by positive action, where necessary. Therefore, the courts cannot limit themselves to a consideration of situations where the state is actively (as opposed to passively) violating such rights. The South African and Irish constitutional frameworks bear this view of rights and state responsibility out. Section 7(2) CRSA expressly recognises the positive obligations imposed by all rights in the Constitution, including socio-economic ones.132 With regard to the socio-economic rights of ‘everyone’ set out in sections 26 and 27, the CRSA obliges the state to take ‘reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the socio-economic rights set out therein’.133 Meanwhile, article 40.3.1° BNhE, which is the basis of children’s constitutional unenumerated socio-economic rights under that instrument, states

129

For more on this, see Chapter 1. Sunstein, above n 128, 88. 131 Irwin Toy Ltd v Québec (Attorney General) [1989] 1 SCR 927, 993. In this case the Supreme Court upheld provincial legislation prohibiting commercial advertising directed at persons under 13 years of age as constituting a reasonable limit upon freedom of expression justified under both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. In an earlier decision, involving a consideration of whether non-inclusion of sexual orientation in provincial human rights legislation infringes the right to equality under the Canadian Charter, the Court highlighted ‘the very problematic distinction’ between legislative action and inaction (Vriend v Alberta [1998] 1 SCR 493, para 53) and rejected the notion that it is only a positive act rather than an omission which may be scrutinised under the Charter (see paras 53–64). In doing so, it expressly highlighted that the ‘neutrality’ of a legislative omission cannot be assumed (para 57). Instead, ‘the deference very properly due to the choices made by the legislature will be taken into account in deciding whether a limit is justified under s 1 and again in determining the appropriate remedy for a Charter breach’ rather than in determining whether such a violation exists per se (para 53). 132 Section 7(2) CRSA provides that ‘[t]he state must respect, protect, promote and fulfil the rights in the Bill of Rights’. 133 See ss 26(2) and 27(2) CRSA. Section 29 CRSA provides that ‘the state, through reasonable measures, must make progressively available and accessible’ the right to further education. 130

Giving Effect to Children’s Socio-economic Rights 159 that ‘the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen’. As Whyte notes, this provision imposes a duty on the state to take positive action in appropriate circumstances.134 Furthermore, article 42.5, which requires the state to vindicate children’s rights in the case of parental inability or default, provides that the state is obliged to endeavour to supply the place of parents ‘by appropriate means’. With regard to enumerated rights, article 42.4 imposes an obligation on the state to ‘provide for free primary education’. It is clear, therefore, that both the South African and Irish Constitutions impose duties on the state to take positive action to ensure that the socioeconomic rights set out therein are vindicated. When explaining how government action or inaction has violated a right, courts must necessarily outline the nature and scope of the governmental obligations corresponding to the rights infringed in order to justify their decision, although the particular obligations emphasised or delineated in specific decisions will depend on the facts at issue before them. When dealing with socio-economic (or indeed, any) rights the courts must be prepared to interpret them so as to articulate both the positive and negative obligations that they impose. Therefore, an insistence of courts upon confining themselves exclusively to outlining the negative duties of the state regardless of the situation under judicial consideration would constitute a misinterpretation of socio-economic rights. However, where the courts outline obligations that are not expressly stated in the text of the provision setting out a right, they may be open to accusations of judicial legislation. The line between judicial adjudication and legislation is essentially one of degree. While the courts do not make law by stating that positive socio-economic rights obligations exist per se, it might be arguable that they do so when identifying particular obligations.135 In my view, however, the identification of specific obligations is better regarded as part of judicial interpretation of the law rather than as the judges making law, considering that such obligations are clearly envisaged by the nature of socio-economic rights and, frequently, the texts that provide for them. Thus, the enunciation of positive (and negative) obligations imposed by socio-economic rights is an essential part of the law-application/interpretation judicial function and hence falls relatively unproblematically within the parameters of the law-application/interpretation judicial function.

134 G Whyte, Social Inclusion and the Legal System: Public Interest Law in Ireland (Dublin, Institute for Public Administration, 2002) 19. 135 That is, where the courts become involved in resolving Waldronian ‘third level’-type disagreements about children’s rights. For more, see Chapter 3.

160 A Question of Balance? The Challenge of Remedies? The question remains, however, whether the same is true of the judicial prescription of steps that the state must take in order to satisfy a courtidentified positive obligation in the form of a mandatory order. The making of mandatory orders by the court goes beyond merely declaring that the state is in violation of its obligations and outlining what should be done in order to remedy the situation. It requires the state to follow a specific course of action, thus controlling its discretion in law or policymaking. The issue here is whether limiting the state’s freedom of action in this way amounts to the courts encroaching on functions of the legislative or executive so as to violate the separation of powers doctrine. This question is particularly pressing in situations in which, having granted a mandatory order, a court retains supervisory jurisdiction, given this may entail the court overseeing, commenting on, approving or rejecting the steps proposed or taken by the state. Such a view was displayed by the minority in the case of Doucet-Boudreau v Nova Scotia (Minister of Education),136 which involved parents’ right to have their children educated in a linguistic minority language.137 The minority, who disagreed with the majority’s ruling that a trial judge could retain supervisory jurisdiction, stated that: A court purporting to retain jurisdiction to oversee the implementation of a remedy, after a final order has been issued, will likely be acting inappropriately … by attempting to extend the court’s jurisdiction beyond its proper role, it will breach the separation of powers principle138 … once [courts] have declared what the law is, issued their orders and granted such relief as they think is warranted by circumstances and relevant legal rules, courts should take care not to unnecessarily invade the province of public administration. To do otherwise could upset the balance that has been struck between our three branches of government.139

The view that positive orders result in the court exercising greater control over the discretion of the legislature or executive in relation to law- or policymaking than they would were another kind of order granted is open to question, at least at a theoretical level. All rulings by a court are binding,140 136

Doucet-Boudreau v Nova Scotia (Minister of Education) [2003] 3 SCR 3. See s 23 of the Canadian Charter on Rights and Freedoms on minority language educational rights. 138 Doucet-Boudreau, above n 136, para 105. 139 Ibid para 111. This contrasted sharply with the view of the majority, who ruled that the trial judge’s remedy took into account, and did not depart unduly or unnecessarily from, the role of the courts in Canadian constitutional democracy (ibid para 68). According to the majority judgment, the remedy vindicated the rights of the parents while leaving the detailed choices of means largely to the executive. The reporting order was judicial in the sense that it called on the functions and powers known to courts (ibid para 71). 140 This belief forms the basis of the presumption by the courts that the executive or legislature will meet its constitutional obligations when the court makes a declaratory order. 137

Giving Effect to Children’s Socio-economic Rights 161 whether the remedy granted on the basis of its findings is phrased in terms of a mandatory or a declaratory order.141 The South African Constitutional Court has pointed out that there is no merit in the argument that a distinction should be drawn between declaratory and mandatory orders against government,142 emphasising that even simple declaratory orders against government or organs of state can affect policy and may well have budgetary implications.143 In doing so, that body highlighted that the government is constitutionally bound to give effect to such orders whether or not they affect its policy and must find the resources to do so.144 In practice, however, mandatory orders are more coercive and exert greater control and impose greater limitations on the discretion of the elected branches than do declaratory orders. This is due to their direction of the particular course of action to be taken by those branches. Furthermore, as stated in Chapter 1, unlike declaratory remedies, mandatory orders frequently carry with them the added threat of a citation for contempt of court in the case of noncompliance.145 Therefore, mandatory orders raise greater concern about violations of the separation of powers than their declaratory counterparts. In sum, it seems probable that the granting of a mandatory order by the court against another branch of government, requiring it to exercise its (legislative or executive) power in a particular (court-determined) way so as to realise children’s socio-economic rights, goes beyond the role granted to the courts under a ‘traditional’ version of the separation of powers doctrine. The question remains, however, whether such an encroachment can be justified. I will return to this later.

In addition to the binding nature of the courts’ rulings on the facts and the law at issue, many of their obiter statements may be regarded as authoritative in terms of providing an indication of what the law is (if such statements are not of full binding force in themselves). 141 In an Irish context, Keane CJ remarked in Sinnott v Minister for Education [2001] IESC 39: ‘In practice, it may not be of any great significance whether the relief granted is by way of a declaration or a mandatory injunction: the respect each of the three great organs of State owe to one another requires obedience to the order of this court or the High Court, whether it takes the form of a declaration or a mandatory injunction’ (para 107). 142 Per the Constitutional Court in TAC, above n 2, para 99. 143 Ibid. 144 Ibid. 145 It is notable that, in contrast to the position vis-à-vis injunctive relief in Ireland, South Africa, the United States and India, amparo/tutela judges in Latin America do not have direct power to punish non-compliance with their orders by means of criminal sanctions (A BrewerCarías, Constitutional Protection of Human Rights in Latin America: A Comparative Study of Amparo Proceedings (New York, Cambridge University Press, 2009) 394–95). The power to enforce such orders, including mandatory orders, is exercised (on application by the relevant amparo/tutela court) by a public administration organ or a competent criminal court (ibid). Amparo courts in some jurisdictions, including Colombia, are, however, empowered to directly impose fines on non-compliant parties.

162 A Question of Balance? ENSURING THE VINDICATION OF CHILDREN’S SOCIO-ECONOMIC RIGHTS: JUSTIFYING AN INFRINGEMENT OF THE SEPARATION OF POWERS?

The second question I will deal with is whether the courts’ duty to ensure that the constitution is upheld, and that other branches of government respect and fulfil their constitutional obligations, may justify their intervention to ensure the enforcement of children’s constitutional socio-economic rights, even where this results in a prima facie infringement on or exercise of powers traditionally regarded as vested in other governmental organs. The claims made in this part may undoubtedly also apply where the courts deal with the socio-economic rights of groups other than children. However, as I will argue in the next section of this chapter, the particular dependence of children upon the courts to ensure that their rights are respected by the elected branches of government means that the arguments detailed here have greater force in relation to their rights. The High Court decisions in TAC and TD involved the courts giving effect to children’s socio-economic rights through granting a mandatory order requiring the state to take steps to comply with its positive socioeconomic rights obligations. As outlined in the previous section, such activity results in a prima facie infringement on powers or functions traditionally regarded as falling within the sphere of the other branches of government. Such ‘infringing’ activity may even be viewed as the courts exercising functions that have customarily been considered to be vested in other governmental organs. In this section, I focus on whether, where this occurs, such encroachment can be justified by reference to the courts’ other obligations under the constitution. I consider if such activity can be classified, not as an usurpation of legislative or executive powers by the courts, but rather as a legitimate aspect of the judicial function when viewed in the light of the courts’ obligation to protect and ensure that children’s constitutional socioeconomic rights are vindicated. I also evaluate whether such activity may be regarded as part of the judicial function under an (admittedly flexible) doctrine of the separation of powers itself. While the duties imposed on the highest courts of Ireland and South Africa (by the CRSA and BNhE respectively) are broadly similar, the recent approaches adopted towards these duties by the highest courts in these two jurisdictions have been very different. The South African Constitutional Court has shown a willingness to engage proactively with socio-economic rights issues and grant wide-ranging, positive orders. In contrast, the Irish Supreme Court has proved much more reluctant on both counts. Both courts dealt with these issues in the context of cases involving children’s socio-economic rights. I use the respective jurisprudence of the courts in order to argue that the encroachment on the spheres of authority of other governmental organs by the courts’ giving effect to children’s

Ensuring the Vindication of Children’s Socio-economic Rights 163 socio-economic rights may be justified in terms of the role of the courts as guardians of the constitution. I begin by outlining the views of the courts on the compatibility (or otherwise) of the separation of powers doctrine with adjudication involving children’s socio-economic rights. I then move on to consider the courts’ attitudes towards making mandatory orders that would operate to control the discretion of the other branches of government with regard to making law or policy. There will be some overlap in my discussion of these questions, based as it is on cases in which both issues arose and were often dealt with by the courts in tandem rather than separately. Next, I consider the respective approaches of the two courts to the balance to be struck between the separation of powers doctrine and duty of the courts to uphold constitutional rights. I close my discussion by suggesting how the courts’ duty to enforce socio-economic rights can be construed as an element of their functions with regard to the separation of powers.

Ireland, South Africa and Children’s Socio-economic Rights: A Study in Contrasts? The contemporary approach of the Irish Supreme Court to socio-economic rights issues can be regarded as having originated with the landmark High Court decision of O’Reilly v Limerick Corporation.146 In this case, the plaintiffs were members of the Travelling community living in conditions of extreme deprivation. They initiated legal proceedings against the local authority seeking a mandatory injunction requiring the authority to provide serviced halting sites under the Housing Act 1966 and claiming that the state should pay them damages for sufferings which they had undergone in the past. This latter claim was based on an allegation that the conditions which the plaintiffs had been required to endure amounted to a breach of their constitutional rights.147

146 O’Reilly v Limerick Corporation [1989] ILRM 181. For an extensive discussion of socio-economic rights jurisprudence under the Irish Constitution, see A Nolan, ‘Ireland: The Separation of Powers Doctrine v Socio-Economic Rights’ in M Langford, Social Rights Jurisprudence: Emerging Trends in Comparative and International Law (Cambridge, Cambridge University Press, 2008) 225; Irish Human Rights Commission, Making Economic, Social and Cultural Rights Effective: An IHRC Discussion Document (Dublin, IHRC, 2005); W Binchy, ‘Promoting Economic, Social and Cultural Rights in Ireland’, paper presented at Irish Human Rights Commission and the Law Society of Ireland, Annual Human Rights Conference, Economic, Social and Cultural Rights: Making States Accountable, 21 November 2009. 147 The plaintiffs asserted that the right to be provided with a certain minimum standard of basic material conditions to foster and protect his or her dignity and freedom as a human person was one of the unenumerated personal rights embraced under art 40.3 BNhE (O’Reilly, above n 146, 192).

164 A Question of Balance? The presiding judge, Costello J, held that he did not have the jurisdiction to adjudicate on the claim as, in doing so, he would be adjudicating on an allegation that the organs of government responsible for the distribution of the nation’s wealth had improperly exercised their powers. According to Costello J, the Aristotelian distinction between commutative and distributive justice marks out the dividing line between the judicial and legislative spheres of operation.148 In his view, the courts are limited to dealing with issues of commutative justice, while the distribution of public resources (ie goods held in common for the benefit of the entire community): can only be made by reference to the common good and by those charged with furthering the common good (the Government); it cannot be made by any individual who may claim a share in the common stock and no independent arbitrator, such as a court, can adjudicate on a claim by an individual that he has been deprived of what is his due.149

Costello J continued: What would be involved in the exercise of the suggested jurisdiction would be the imposition by the court of its view that there has been an unfair distribution of national resources. To arrive at such a conclusion it would have to make an assessment of the validity of the many competing claims on those resources, the correct priority to be given to them and the financial implications of the plaintiff’s claim. As the present case demonstrates, it may also be required to decide whether a correct allocation of physical resources available for public purposes has been made. In exercising this function the court would not be administering justice as it does when determining an issue relating to commutative justice but it would be engaged in an entirely different exercise, namely an adjudication on the fairness or otherwise of the manner in which other organs of State had administered public resources. Apart from the fact that members of the judiciary have no special qualifications to undertake such a function, the manner in which justice is administered in the courts, that is, on a case by case basis, makes them a wholly inappropriate institution for the fulfilment of the suggested role. I cannot construe the Constitution as conferring it on them.150

Costello J ultimately dismissed the claim, stating that in order to comply with the Constitution, such a petition should ‘be advanced in Leinster House [the seat of the Irish Parliament] rather than in the Four Courts’.151 I return to this point later in the third part of my analysis. Suffice to say

148

Whyte and Hogan, above n 29, 116. O’Reilly, above n 146, 194. 150 Ibid 195. 151 Ibid. Interestingly, in light of TD and other similar future cases, during the course of his judgment Costello J stated that, if the court had the jurisdiction to adjudicate on a claim such as the one before him in O’Reilly, then the court would also be able to entertain claims from other deprived persons in society, including those of children ‘whose lives are in danger of being permanently blighted because the education and welfare services available are not adequate for their needs’ demanding the provision of basic services (ibid 193). 149

Ensuring the Vindication of Children’s Socio-economic Rights 165 at this point that Costello J’s approach fails to take account of a situation in which a group is unable to ensure that its socio-economic interests are vindicated or forwarded through the democratic system, due to the hostility or indifference of the elected branches of government.152 This judicial reluctance to become involved in ‘distributive justice’ issues was reiterated in several cases and confirmed by the Supreme Court.153 The issue arose again in the Sinnott v Minister for Education case, which involved an adult applicant, who was severely autistic. His mother sought on his behalf, amongst other things, a mandatory injunction directing the Minister to discharge the state’s obligations to her son by providing free primary education appropriate to his needs. Ultimately, the Sinnotts lost, with a majority of the Supreme Court holding that the state’s duty to provide for free primary education applies to children only, not adults, and ceases at the age of 18, even in the case of a person with severe mental handicap. The mandatory orders granted by the High Court, which stipulated that the state was to provide free primary education for Mr Sinnott for as long as he was able to benefit from it, as well as the necessary funding for a specific home-based programme of education, were revoked. In place of these orders, the Supreme Court granted a formal declaration that, by its failure to provide appropriate education for the plaintiff up to the age of 18, the state had deprived him of his constitutional rights. In Sinnott, Hardiman J dealt expressly with the question of the residual power of the court to ensure that a person’s constitutional rights were not circumvented or denied. Having quoted Costello J’s judgment in O’Reilly approvingly at length, he stated that, apart from in an extreme case where the government would ignore a constitutional imperative and defy a court declaration on a topic, the courts should refrain from exercising such a power. It should do so for several reasons. First, were the courts to exercise such a power, this would offend the constitutional separation of powers.154 Secondly, it would lead the courts into the taking of decisions in areas in which they have no special qualification or experience.155 Thirdly, it would permit the courts to take such decisions even though they are not, and cannot be, democratically responsible for them as the legislature and 152 Ironically, Costello J later withdrew from the stance he had adopted in the O’Reilly case, in O’Brien v Wicklow UDC, High Court (unreported, 10 June 1994), which also concerned a claim by travellers that the state, acting thorough the local authority, had a duty to provide serviced halting sites for them. Upon holding that such a duty did exist, he stated that, ‘I don’t think it is necessary to say whether I am now expressing a different view to the one which I expressed in the case of O’Reilly and others v Limerick Corporation … Even, however, if the view which I am now expressing represents a change of views on my part, then I accept my views have changed’ (at 3–4). 153 See eg MhicMhathúna v Attorney General [1995] 1 IR 484 and State (C) v Frawley [1976] IR 365. 154 Sinnott, above n 141, para 374. 155 Ibid.

166 A Question of Balance? executive are.156 Finally, the evidence-based adversarial procedures of the court, which are excellently adapted for the administration of commutative justice, are too technical, too expensive, too focused on the individual issue to be an appropriate method for deciding on issues of policy.157 Elsewhere in his judgment, Hardiman J stated that the separation of powers doctrine existed ‘to prevent the accumulation of excessive power in any one of the organs of government or its members, and to allow each to check and balance the others’.158 In addition to his express reference to the separation of powers, his second and fourth arguments relating to the institutional capacity of the courts may also be regarded as being based on the doctrine of separation of powers, although on an ‘efficiency’ rather than a ‘balancing’ version of the doctrine. While Hardiman J spoke about the residual power of the court to intervene to enforce constitutional rights in general, it is clear that he was chiefly concerned with those he considered to involve ‘distributive justice’ (ie socio-economic rights) as the case before him involved such a right and the examples dealt with in this section of his judgment relate to the right to education and duty on the state to provide financial support to the family. In the later case of TD, all five Supreme Court Justices referred to Costello J’s statements in the O’Reilly case approvingly. Even Denham J, who ultimately disagreed strongly with the finding of the majority, agreed with Costello J’s ruling in O’Reilly that the distribution of the nation’s wealth is a matter for the executive and the legislature.159 The heavy reliance of the majority of the Court in TD and Sinnott on the reasoning and authority of the O’Reilly case is open to question. This is due to the failure of the majority of the Supreme Court to recognise that while the plaintiffs in O’Reilly relied on a previously unidentified unenumerated constitutional right, the applicants in TD and Sinnott relied on rights expressly identified in the text of the Constitution and in previous case law. Where such rights have previously been recognised as being protected by the constitution, adjudication concerning them involves no more of a transfer of power to the judiciary at the expense of other branches of government than adjudication involving ‘traditional’ civil and political rights with implications for public expenditure and policy. Furthermore, in O’Reilly, Costello J did not determine that there was a breach of a constitutional right. Rather, he analysed the concept of distributive justice. However, in TD the applicants were not making a case that the nation’s wealth be justly distributed, rather their cases were brought to protect recognised and acknowledged constitutional rights.160

156 157 158 159 160

Ibid. Ibid. Ibid para 346. TD, above n 1, para 137. Per Denham J, ibid para 137.

Ensuring the Vindication of Children’s Socio-economic Rights 167 Notably, in cases in which the state has failed to vindicate a citizen’s socioeconomic rights, the boundary between compensatory/commutative justice and distributive justice is not as clear as Costello J suggested. It would seem that such cases should actually be classified as commutative/rectificatory justice as they involve a wrong in the form of a breach of a constitutional right of a citizen; any remedy granted is aimed towards rectifying the wrong committed by the state.161 Admittedly, as O’Mahony highlights, such a remedy will usually involve, as a knock-on effect, the distribution of public resources. This is, however, merely a secondary symptom of the case, as is the distribution of public resources stemming from an award of damages in a case where a servant of the state commits a tort162 or where such an actor violates a civil and political right.163 In TD, Hardiman J took the opportunity to reiterate his concerns about judicial involvement in areas ‘more obviously within the ambit of the legislative or executive government’,164 quoting approvingly a commentator who argued that incorporating justiciable socio-economic rights into the constitution by referendum would mean a significant transfer of power from the elected branches of government to an unelected judiciary.165 The other judges of the Court articulated similar views. Murphy J explicitly doubted the existence of any socio-economic constitutional right apart from the right to education set out in article 42, stating that ‘[w]ith the exception of the provisions dealing with education, the personal rights identified in the Constitution all lie in the civil and political rather than the economic sphere’.166 Another member of the Court expressed ‘the gravest doubts as to whether the courts at any stage should assume the function of declaring what are today frequently described as “socio-economic rights” to be unenumerated rights guaranteed by Article 40’.167 These statements illustrate the 161 C O’Mahony, ‘Education, Remedies and the Separation of Powers’ (2002) 24 Dublin University Law Journal 57, 76. 162 Ibid. 163 For more on the impact of child socio-economic rights adjudication on the distribution of socio-economic rights-related goods, see Chapter 6. 164 TD, above n 1, para 241. 165 Ibid para 244. 166 Ibid para 167. 167 Ibid per Keane CJ, para 66. The questioning of the rights enunciated in FN by various members of the Supreme Court in TD was done unilaterally, as the state did not dispute the conclusions in the earlier case. Therefore, these and other comments in relation to socioeconomic rights were obiter. One of the results of this spontaneous questioning of FN by the Supreme Court was that lawyers on both sides were not given the opportunity to comment on, attack or defend the ruling. It was suggested by one Irish source that part of the reason for the Supreme Court’s decision to question FN was that the Court realised that if it accepted that FN was correctly decided and, therefore, that the rights identified by Geoghegan J existed, it would not make sense to say that there was no way of enforcing those rights. In the earlier decision of North Western Health Board v W (H) [2001] IESC 70, three Supreme Court judges mentioned FN in the context of discussing children’s unenumerated personal rights without expressly declaring a reservation about the rights declared in that case (ibid per Murphy J (para 202),

168 A Question of Balance? reluctance of the Irish Supreme Court to engage with socio-economic rights, particularly those of an unenumerated nature. Hogan and Whyte have stated that, in the absence of a subsequent decision reversing or qualifying the Court’s approach in TD, it can be presumed that the Irish Supreme Court does not consider the resolution of socio-economic issues that have implications for public spending or policy to fall within the judicial sphere of operations; this is due to, amongst other things, the implications of this activity for the separation of powers doctrine.168 However, this is not fully correct. Following TD, the Supreme Court struck down an attempt by the government to retrospectively legalise illegal nursing home charges to medical card holders, finding that the attempt to retrospectively legalise the charges involved the abrogation of a property right protected by BNhE.169 According to government sources, repayments to former patients and their families who were illegally charged may cost the state between $500 million and $1.2 billion.170 This case demonstrates that the Court does not hesitate to deal with socio-economic issues that have implications for public spending or policy in situations where the constitutional rights at issue are not socio-economic rights.171 Furthermore, the statements made by various members of the Supreme Court in TD suggest that it is unlikely that the Court, as currently constituted, will be prepared to identify further unenumerated constitutional socio-economic rights under article 40.3.1°. Again, however, the Supreme Court’s approach in In re Article 26 and the Health (Amendment) (No 2) Bill would appear to signal a slight softening in its stance. In this case, counsel had submitted that the Constitution, and specifically the right to life and the right to bodily integrity of persons as derived from article 40.3.1º and 2°, imposes an obligation upon the state to provide at least a basic level of in-patient facilities to persons in need of care and maintenance who cannot provide for it themselves. Interestingly, rather than rejecting the existence of such a right out of hand (as might have been expected from its comments in TD), the Court stated that: [i]n a discrete case in particular circumstances an issue may well arise as to the extent to which the normal discretion of the Oireachtas in the distribution or

Keane CJ (para 80) and Denham J (para 160)). Thus, the rights recognised by the High Court in FN must be regarded as part of Irish constitutional law as it stands at the moment. Although the Court’s comments in TD on the correctness of the judgment in FN and the appropriateness of interpreting the Constitution to include socio-economic rights were also negative, it must be recalled that they were obiter and thus do not form part of a binding precedent. 168 169 170

Ibid. In re Article 26 and the Health (Amendment) (No 2) Bill 2004 [2005] IESC 7. C O’Brien, ‘Calls for $2,000 payments to be “separate”’, Irish Times, 24 February

2005. 171 While the right to property may certainly be classified as a socio-economic right, this does not appear to be how it is perceived by the Supreme Court.

Ensuring the Vindication of Children’s Socio-economic Rights 169 spending of public monies could be constrained by a constitutional obligation to provide shelter and maintenance for those with exceptional needs.172

The restrictive approach adopted by the Irish Supreme Court to socioeconomic rights issues is open to question on many grounds, including the fact that the distinction between distributive and commutative justice is hardly watertight.173 Furthermore, there is no reason in principle why distributive and commutative justice must be segregated in accordance with the constitutional function of the person making the decision,174 bearing in mind that the distinction between the two kinds of justice ‘is no more than an analytical convenience, an aid to orderly consideration of problems’.175 However, even if one accepts the conventional view that the elected branches of government are better equipped to design schemes of distributive justice, while courts are better at dealing with commutative justice, that does not necessarily justify the court adopting such a restrictive approach to socio-economic rights issues. As mentioned previously during the discussion of the O’Reilly case above, in cases where the state has failed to vindicate a citizen’s constitutional socio-economic right, the justice at issue is commutative rather than distributive in nature and hence falls to be dealt with by the courts. In addition, the Supreme Court’s emphasis on the courts’ lack of a democratic mandate to deal with distributive justice issues has led to that body failing to give due consideration to the argument that the judiciary is constitutionally equipped to hear economic, social and cultural rights arguments exactly because it is insulated from the political pressures inherent in the functions of the legislature and the executive.176 Finally, the court’s refusal to become involved in issues of ‘policy’ fails to recognise the fact that sometimes a question put before a judge can be viewed as both a question of policy and as a question of law.177 Let us take, for example, a case where a child has an unusual form of disability and no provision has been made by the state to meet his educational

172 In re Article 26 and the Health (Amendment) (No 2) Bill, above n 169, para 34. The Court did not consider it necessary to examine such an issue in the circumstances that arose from an examination of the Bill referred to it. For further analysis of this decision and its implications for the Supreme Court’s approach towards unenumerated socio-economic rights, see G. Whyte, ‘Socio-Economic Rights in Ireland: Judicial and Non-Judicial Enforcement’, paper presented at Conference on Economic, Social and Cultural Rights: Models of Enforcement, Irish Human Rights Commission, Dublin, Ireland, 9–10 December 2005. 173 See Whyte, above n 134, 13. 174 M De Blacam, ‘Children, Constitutional Rights and the Separation of Powers’ (2002) 37 Irish Jurist 113, 131. 175 J Finnis, Natural Law and Natural Rights (Oxford, Clarendon Press, 1980) 179, cited in ibid. 176 This argument is made by Geraldine Van Bueren, ‘Including the Excluded: The Case for an Economic, Social and Cultural Human Rights Act’ (2002) Public Law (Autumn) 456, 465. 177 Paraphrased from De Blacam, above n 174, 135.

170 A Question of Balance? needs. Meeting those needs may well entail issues of policy about the nature, delivery and cost of the service. However, at the same time there is also a plain and simple issue about the failure of the state to meet the child’s explicit constitutional entitlement under BNhE. In such a case, as De Blacam notes, to say that the issue is one of policy and is therefore not justiciable does not answer the plaintiff’s case: it simply ignores it.178 This might be viewed as an abdication of the court’s responsibility to give a decision on a constitutional question before it. Martha Minow has pointed out that judicial inaction, as well as judicial action, may impair relationships with other branches and undermine the government’s overall obligation to respect persons.179 While it is definitely important for judges to understand their relationships with other actors and institutions, such understanding is quite different from ceding responsibility for what ensues on the grounds of judicial deference. However, rather than dealing with the Supreme Court’s arguments in the abstract, I prefer to answer them by using the case law of the Constitutional Court. It has been acknowledged by at least one Constitutional Court Justice that, the ‘judicial function simply does not lend itself to the kinds of factual enquiries, cost-benefit analyses, political compromises, investigations of administrative/enforcement capacities, implementation strategies and budgetary priority decisions, which appropriate decision-making on social, economic, and political questions requires’.180 This has not, however, generally prevented the Court from carrying out its constitutionally mandated function of scrutinising the acts of the legislature and the executive in relation to such questions when deciding whether these organs have satisfied their obligations to realise socio-economic rights.181 In the Grootboom case, the Constitutional Court stated that: Socio-economic rights are expressly included in the Bill of Rights; they cannot be said to exist on paper only. Section 7(2) of the Constitution requires the State ‘to respect, protect, promote and fulfil the rights in the Bill of Rights’ and the courts are constitutionally bound to ensure that they are protected and fulfilled.182

178

Ibid 135. She makes this assertion in the context of arguing that the separation of powers necessarily involves continuous relationships between the branches rather than confining each to entirely distinct fields of competence. M Minow, Making All the Difference: Inclusion, Exclusion and American Law (New York, Cornell University Press, 1990) 369. 180 Per Sachs J in Du Plessis and others v De Klerk and another 1996 (3) SA 850 (CC); 1996 (5) BCLR 658 (CC), para 180. For similar statements on the courts being ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community, see TAC, above n 2, para 38 and Chaskalson J in S v Lawrence 1997 (4) SA 1176 (CC), 2001 (5) BCLR 423 (CC) para 42. 181 For more on the Court’s tendency towards a more deferential stance in recent times, see Chapter 5. 182 Grootboom, above n 27, para 20. 179

Ensuring the Vindication of Children’s Socio-economic Rights 171 The Court further noted that section 38 of the Constitution empowers the Court to grant appropriate relief for the infringement of any right entrenched in the Bill of Rights.183 In the First Certification Judgment, the Constitutional Court expressly rejected the argument that the inclusion of socio-economic rights in the Constitution was inconsistent with the separation of powers because the judiciary would have to encroach upon the proper terrain of the legislature and executive. The Court stated that, while it is true that the inclusion of socio-economic rights may result in courts making orders which have direct implications for budgetary matters, even when a court enforces civil and political rights such as equality, freedom of speech and the right to a fair trial, the order it makes will often have such implications.184 In a much-cited statement, the Court stressed that: it cannot be said that by including socio-economic rights within a bill of rights, a task is conferred upon the courts so different from that ordinarily conferred upon them by a bill of rights that it results in a breach of the separation of powers … The fact that socio-economic rights will almost inevitably give rise to such implications does not seem to us to be a bar to their justiciability.185

This point was reiterated in the TAC case, where the Constitutional Court acknowledged that while determinations of reasonableness may in fact have budgetary implications, they are not themselves directed at rearranging budgets. According to the Court, this approach ensures adherence to the principle of separation of powers.186 As the Court has made clear in its jurisprudence, given that the state is obliged under the Constitution to take reasonable legislative and other measures to ensure socio-economic rights, including policies and programmes that are reasonable both in their conception and their implementation,187 a dispute is ‘likely to require a court to evaluate state policy and to give judgment on its constitutional consistency’.188 In relation to the argument that judicial intervention in relation to governmental policy-making would violate the separation of powers doctrine, the Constitutional Court stated that: This Court has made it clear on more than one occasion that … there are certain matters that are pre-eminently within the domain of one or other of the arms of government and not the others. All arms of government should be sensitive to and respect this separation. This does not mean, however, that courts cannot or

183

Ibid note 21. First Certification Judgment, above n 38, para 77. 185 Ibid paras 77, 78. 186 S Khosa, ‘Reducing Mother-to-Child Transmission of HIV: The Nevirapine Case’ (2002) 3 ESR Review 1. 187 Grootboom, above n 27, para 42. 188 TAC, above n 2, para 101. 184

172 A Question of Balance? should not make orders that have an impact on policy … The primary duty of courts is to the Constitution and the law, ‘which they must apply impartially and without fear, favour or prejudice’. The Constitution requires the state to ‘respect, protect, promote, and fulfil the rights in the Bill of Rights’. Where state policy is challenged as inconsistent with the Constitution, courts have to consider whether, in formulating and implementing such policy, the state has given effect to its constitutional obligations. If it should hold in any given case that the state has failed to do so, it is obliged by the Constitution to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself. (footnotes omitted, emphasis added)189

Ireland, South Africa: A Tale of Two Approaches to Remedies In TAC, the Constitutional Court discussed the issue of remedies in detail, stating that it has wide powers to grant ‘appropriate relief’ and, in addition to the declaration that it is obliged to make in terms of section 172(1)(a), a court may also ‘make any order that is just and equitable’.190 Where a breach of any right has taken place, including a socio-economic right, the court is under a duty to ensure that effective relief is granted: The nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in a particular case. Where necessary this may include both the issuing of a mandamus and the exercise of supervisory jurisdiction. (footnote omitted)191

The Court referred to previous statements of its own that it is within the power of courts to make a mandatory order against an organ of state,192 as well as to instances in which the Court had made such orders.193 The Constitutional Court proceeded to review the practices in other jurisdictions in relation to mandatory orders. It came to the conclusion that the various national courts adopt different attitudes to when such remedies should be granted, ‘but all accept that within the separation of powers they have the power to make use of such remedies—particularly when the state’s obligations are not performed diligently and without delay’.194 According to the Court, while due regard must be paid to the roles of the legislature and the executive in a democracy, ‘[w]hat must be made clear … is that when it is appropriate to do so, courts may—and if need be must—use their 189

Ibid para 99. Ibid. 191 Ibid para 106. 192 Ibid para 105, note 54. 193 For instance, in August and another v Electoral Commission and others 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC) and Dawood and another v Minister of Home Affairs and others 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC). 194 TAC, above n 2, para 112. 190

Ensuring the Vindication of Children’s Socio-economic Rights 173 wide powers [to ensure that the Constitution is upheld] to make orders that affect policy as well as legislation’.195 In contrast, the Irish Supreme Court has adopted an extremely restrictive attitude towards the granting of positive orders against the state. In Sinnott, several of the judges obiter either expressly or implicitly indicated a reluctance to grant a mandatory injunction in a constitutional context.196 However, at least two of them acknowledged that there could be extreme circumstances in which such orders might be appropriate, but that the facts of this case were not so extreme as to warrant the granting of such an order.197 Subsequently, the Supreme Court adopted an even harder line on the granting of mandatory orders against the state in the TD case. In this case, the state submitted that the mandatory orders granted by the High Court were, in effect, a transfer of overall policy to the courts from the executive and, consequently, were contrary to the separation of powers. In the High Court, Kelly J had argued that in directing the executive to adhere to its own policy he was not making policy. He did, however, express the view that: there is a jurisdiction vested in the Court to intervene in what has been called policy in an appropriate case. Such an intervention would only occur in limited circumstances and where absolutely necessary in order for this Court to carry out its duties under the Constitution in securing, vindicating and enforcing constitutional rights.198

In contrast, Murray J regarded the broad assertion of jurisdiction to vindicate constitutional rights made by the courts previously to be circumscribed by the principle of the separation of powers.199 He distinguished between, on the one hand, ‘interfering’ in the action of the other organs of state in order to ensure compliance with the Constitution, and, on the other,

195

Ibid para 113. Geoghegan J (para 417), Hardiman J (paras 333–51), Denham J (para 156) and Keane CJ (para 80). Murray and Fennelly JJ stated that it was not necessary to consider the issue (paras 272 and 424 respectively). Murphy J did not refer to the issue of remedies in the course of his judgment. It is interesting to note Hardiman J’s comment that, ‘the enforcement of duties imposed by the legislature is obviously an exercise of a different kind to the devising or inferring of such duties without legislative intervention’ (para 379). See also Hardiman J’s comments at paras 261–62 of TD, above n 1, where he discusses the possibility that relief could be afforded to the applicant under legislation. These dicta appear to suggest that it is possible that the Court would have been prepared to adopt a less restrictive approach to the granting of mandatory orders where the duties at issue were statutory rather than constitutional in nature. The Supreme Court has not, however, granted a mandatory order on the basis of a violation of a statutory right since the TD decision. For more on the Irish courts granting of mandatory orders on the basis of a statutory right, see Nolan, above n 147, 225. 197 TD, above n 1, per Denham J (para 156) and Geoghegan J (para 417). 198 TD v Minister for Education, above n 116, para 61. 199 B Ruane, ‘The Separation of Powers and the Granting of Mandatory Orders to Enforce Constitutional Rights’ (2002) 7 Bar Review 11, 14. 196

174 A Question of Balance? taking over the core functions of those organs so that these functions are exercised by the courts. He stated that: in incorporating the policy programme as part of a High Court Order the policy is taken out of the hands of the Executive, which is left with no discretionary powers of its own. It becomes the policy and programme of the Court … A judicial imperative is substituted for executive policy. The judge becomes the final decision maker. In short he is administrator of that discrete policy. That is not a judicial function within the ambit of the Constitution.200

Other members of the Court also took issue with Kelly J’s reliance on the fact that he was merely holding the executive to its own policy in granting the order. Chief Justice Keane was of the view that the order of the High Court in this case not only offended the doctrine of the separation of powers but that it also involved the High Court in effectively determining the policy which the executive were to follow in dealing with a particular social problem.201 He found that this difficulty was not resolved by the applicants’ argument that the Ministers were being asked to do no more than carry into effect a programme prepared by them and which they had asserted that they intended to implement.202 In his opinion, the executive was entitled to be flexible in its approach, while still respecting children’s rights. This was incompatible with requiring the Minister to revert to the High Court to allow a change in policy that did not accord with the terms of the orders.203 Hardiman J stated that the court’s jurisdiction to grant an order such as the one at issue was independent of whether or not the Minister against whom it was directed might or would do what is ordered to be done in any event.204 It was also independent of whether or not the court might vary the order if the Minister changed his policy and convinced the court that it was proper that he should do so.205 Thus, Kelly J could not justify his granting of the order on the basis of the Minister’s present intentions and on the possibility that the court might amend the order in the future.206 According to Murray J, such an order should only be granted where there has been ‘a conscious and deliberate decision by [an] organ of State to act in breach of its constitutional obligations accompanied by bad faith or recklessness’.207 In his view, a court would also have to be satisfied that the absence of good faith or the reckless disregard of rights would impinge 200

TD, above n 1, paras 224–25. Ibid para 80. 202 Ibid. 203 Ruane, above n 199, 14. 204 TD, above n 1, para 338. 205 Ibid para 338. 206 Ibid para 338. 207 Ibid para 232. In doing so, he referred to McKenna v An Taoiseach (No 2), Crotty v An Taoiseach (discussed above in the text and in n 105) and a number of other cases. 201

Ensuring the Vindication of Children’s Socio-economic Rights 175 on the observance by the state party concerned of any declaratory order made by the court.208 He stated expressly that he did not consider that ‘culpable slippage’ of an administrative nature, or ‘bureaucratic haggling’, which may include serious legal questions of departmental competencies, or ‘inefficiency may of themselves alone constitute grounds for a mandatory order against the State’.209 Hardiman J agreed with Murray J, stating that such an order could only be granted as ‘an absolutely final resort in circumstances of great crisis and for the protection of the constitutional order itself’.210 In his view, no such circumstances that would justify the granting of such an order had occurred since the enactment of BNhE in 1937.211 It is interesting to note that Hardiman J did not consider the circumstances in the case before him as being of ‘great crisis’. Nor did he appear to view the consistent disregard of declaratory orders by the elected branches of government as constituting a threat to the constitutional order! According to both judges, even where a mandatory order might be granted, such an order could direct the fulfilment of a manifest constitutional obligation, but should not specify the means or policy to be used in fulfilling the obligation.212 The single dissenting judge (Denham J) adopted a different approach, arguing that it was clear from the case law that in rare and exceptional cases, to protect constitutional rights, a court may have a jurisdiction, and even a duty, to make a mandatory order against another branch of government.213 The circumstances of the cases in TD were exceptional.214 She was satisfied that the order in question was necessary, in the circumstances, to vindicate the rights of the children and was consistent with the obligation of the court to vindicate constitutional rights.215 She pointed out further that a decision of a court, even if it is in relation to a single individual, may affect policy: The expense of the case itself and its outcome may have profound and farreaching effects. Simply because a case affects a policy of an institution does not per se render it unconstitutional or bring it into conflict with the principle of the separation of powers.216

This position is very similar to that advanced by the South African Constitutional Court in the TAC case.

208 209 210 211 212 213 214 215 216

Ibid. Ibid para 233. Ibid para 367. Ibid. Ibid per Murray J (para 232) and Hardiman J (para 366). Ibid para 139. Ibid para 163. Ibid. Ibid para 133.

176 A Question of Balance? In addition, she disagreed with the majority that in making an order such as that granted by the High Court against the executive, the court was formulating policy, stating instead that the order merely mandated the state’s own policy.217 Her views on this point are consistent with those of courts in other jurisdictions who have addressed the issue of requiring the government to adhere to its own policies or programmes. In practice, much socio-economic rights litigation results from what might be branded ‘action-inaction cases’, for instance, from situations where the executive is sued for not complying with statutory regulations passed by the legislature.218 In such a case, while there has been action on the part of one branch of government, there has been inaction on the part of another. Similarly, Courtis highlights that there are a wide range of decisions in Latin America that address the state’s failure to implement its own programme, in which the courts have responded by requiring the state to adhere to that self-designed programme.219 One example of such litigation is the large number of cases in Colombia taken to challenge the failure of the state to provide the benefits to which complainants (including children) are entitled under the contributory and the subsidised healthcare benefits regimes.220 As Courtis observes, in such cases, adjudication could be viewed as reinforcing, rather than undermining, the separation of powers.221 In practice, the Irish Supreme Court has restricted its ability to grant mandatory orders to such an extent that it is almost inconceivable that such an order would be granted, particularly in relation to socio-economic rights, which raise their own particular concerns in relation to the doctrine of the separation of powers for the Court. On the other hand, the South African Constitutional Court appears to regard itself as constitutionally bound to ensure that the acts and enactments of all governmental organs accord with the strictures of the Constitution—even to the extent of granting a mandatory order against the legislature or executive, when necessary.

The Irish and the South African Courts: Striking a Different Balance? I argued earlier that, where the courts give effect to children’s socioeconomic rights by granting a mandatory order requiring the state to take steps to give effect to such rights, this results in a prima facie infringement 217

Ibid para 134. C Courtis, ‘Judicial Enforcement of Social Rights: Perspectives form Latin America’ in R Gargarella et al (eds), Courts and Social Transformation in New Democracies (Aldershot, Ashgate, 2006) 169, 175. 219 Ibid. 220 See A Yamin and O Parra-Vera, ‘How Do Courts Set Health Policy? The Case of the Colombian Constitutional Court’ (2009) 6(2) Public Library of Science Medicine 147. 221 Courtis, above n 218, 175. 218

Ensuring the Vindication of Children’s Socio-economic Rights 177 on the exercise of powers traditionally regarded as vested in other organs of government. The Irish Supreme Court regards this as a violation of the doctrine of the separation of powers. The South African Constitutional Court does not. The difference between the South African and Irish courts’ attitudes may be viewed in terms of granting a different priority to two different aspects of the courts’ obligation to ensure that the constitution is respected and upheld by all branches of government: their duty to ensure that constitutional socio-economic rights are respected and vindicated and their duty to ensure that the separation of powers doctrine is respected and upheld. This is very evident in the TAC and TD decisions. Both cases before the superior courts were appeals brought by the state against orders granted by lower courts directing the state to take specific steps to give effect to children’s socio-economic rights. Both orders limited the government’s discretion in designing policy and required the allocation of public funds. In both cases it was accepted by the court that the state’s action (or inaction) had resulted in the violation of children’s socio-economic rights. The courts diverged when it came to formulating an appropriate judicial approach towards these rights and in outlining appropriate responses to the violations at issue. In the TD case, Hardiman J built upon his comments in the Sinnott case, in which he emphasised that ‘[the separation of powers] is not a mere administrative arrangement: it is itself a high constitutional value … It is an essential part of the democratic procedures of the State, not inferior in importance to any article of the Constitution’.222 In TD, he stated that the High Court’s statement that the court has to attempt to fill the vacuum that exists by reason of the failure of the legislature and executive to vindicate children’s constitutional rights came close to ‘asserting a general residual power in the courts, in the event of a (judicially determined) failure by the other branches of government to discharge some (possibly judicially identified) constitutional duty’.223 If this were accepted, it would have the effect of attributing a paramountcy to the judicial branch of government which was contrary to his view of the Constitution, under which no branch of government is attributed with ‘an overall, or residual, supervisory power over the others’.224 Acknowledging the checks and balances provided by the Constitution (including that of judicial review of legislation), he further stated that the existence of such powers does not suggest that a court, or

222 Sinnott, above n 141, para 346. Keane CJ expressly agreed with Hardiman J’s analysis of the separation of powers doctrine (para 109). 223 TD, above n 1, para 353. 224 Ibid para 350.

178 A Question of Balance? any other organ of government, can strike its own balance in a particular case as to how the separation of powers is to be observed.225 These comments are inconsistent with previous Supreme Court statements that the segregation of functions under the Irish doctrine of separation of powers is not absolute, and appear to ignore the role granted to the Court as guardian of the rights and principles set out in BNhE. Hardiman J’s comments on the courts’ inability to strike a balance are especially worthy of comment as they appear to suggest that the courts (who are undoubtedly the ultimate interpreters of the Constitution) are not entitled to rule on how the separation of powers doctrine operates in a particular situation; that is, the courts are not entitled to exercise their ‘particularisation’ function.226 As De Blacam has pointed out, contrary to what Hardiman J suggests, a balance does have to be struck in such a situation and even where the courts refuse to intervene in executive action, that, in itself, is striking a balance.227 It is clear that the majority in TD considered the Supreme Court’s power to vindicate constitutional rights to be limited by the principle of the separation of powers.228 Thus, they regarded their duty to uphold (a very rigid version of) the separation of powers doctrine and protect it from infringement as outweighing their duty to protect and vindicate the constitutional rights at issue. Providing an important contrasting view, Denham J, in the minority, emphasised that where there is a balance to be achieved between the application of the doctrine of the separation of powers and protecting rights or obligations under the Constitution, the courts have a specific constitutional duty to achieve a just and constitutional balance.229 Ultimately, the court is the protector and guarantor of the fundamental rights and the rule of law under the Constitution and its duty to guard fundamental rights should not be shirked or abdicated.230 Denham J identified several important factors in this case relevant to the analysis of the balance to be achieved between protecting constitutional rights, enforcing constitutional obligations and the application of the doctrine of the separation of powers. Significantly, these included the status of the applicants as children. In her view, this raised at least two 225

Ibid para 352. This is a contradiction of previous Supreme Court statements, such as that of McCarthy J in Attorney General v Hamilton (No 1) [1993] ILRM 81 quoted above n 101, and the statement of Walsh J in Crotty v An Taoiseach [1987] ILRM 400, 778 that ‘To the judicial organ of government alone is given the power conclusively to decide if there has been a breach of constitutional restraints’. 227 De Blacam, above n 174, 141. 228 Murray J and Hardiman J stated this expressly, while the findings of the other judges indicate implicit agreement. 229 TD, above n 1, para 142. Hardiman J expressly disagreed with Denham J on this point in his judgment (ibid paras 349–50). 230 Ibid para 159. 226

Ensuring the Vindication of Children’s Socio-economic Rights 179 fundamental matters of importance: that the court has a duty to ensure that the process enabled the children’s rights to be protected; and that the nature of the constitutional rights in issue meant that time was of the essence. She emphasised that delay was an important factor in light of the nature of the rights being protected and the age of the applicants and the effect of not vindicating the rights during the children’s youth.231 Damages at a later state would not be an adequate remedy. Denham J was the only Supreme Court Justice to expressly consider the obligation owed to children by the court, an issue that was addressed in some detail by the High Court in its judgment.232 As stated previously, in the TAC case, the Constitutional Court made it clear that, where the state fails to give effect to its constitutional obligations, the court is obliged to say so.233 This encroachment on the area of the other branch of government (if encroachment it be) is mandated by the Constitution itself. The fact that the Court used the words, ‘in so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself’ (emphasis added),234 would seem to indicate that the Constitutional Court does regard such activity as (at least a potential) violation of the doctrine of the separation of powers. It would appear that, here, the Court balanced its duty to uphold constitutional rights and obligations (and to ensure that the elected branches of government do likewise), against their duty to respect the separation of powers doctrine. In other words, it (implicitly) carried out the same balancing exercise as that employed by Denham J in the TD case. Such an approach may be viewed as the expression of a judicial choice to uphold constitutional rights at the expense of the separation of powers. It, thus, seems likely that my second question (whether the courts’ duty to ensure that all branches of government fulfil their constitutional obligations and respect and vindicate children’s constitutional socio-economic rights could justify the courts’ ensuring the enforcement of those rights) has been answered in the affirmative by the Constitutional Court in the TAC case and the Supreme Court minority in the TD case. That is, in these cases at least, those judges regarded their duty to ensure that the constitution 231

Ibid para 145(f). The obligation of the court to children was emphasised by Kelly J in the High Court in both DB [1998] IEHC 123 (para 52) and TD v Minister for Education, above n 116, para 12. He also stated that the factors which had to be taken into account in deciding whether or not to grant the mandatory orders at issue included: ‘if the declaration was to be of any benefit to the minors, the necessary steps consequent upon it had to be taken expeditiously. Otherwise the minors would have achieved majority within a few years of the declarations being granted without gaining any benefit from them; …[and] the effect of a failure to provide the appropriate facilities must have had a profound effect on the lives of these minors and put them at risk of harm’ (ibid para 63). 233 Section 172(1)(a) CRSA. 234 TAC, above n 2, para 99. 232

180 A Question of Balance? is upheld and that other branches of government respect and fulfil their constitutional obligations as justifying their giving effect to such rights, even where this resulted in a prima facie infringement on powers traditionally regarded as vested in other governmental organs. Considering the imperfect and implicit (rather than express) nature of the separation of powers doctrine under the CRSA and BNhE, it is certainly arguable that the Courts are striking the correct balance when they grant precedence to enforcing express enumerated rights over enforcing a rigid version of the separation of powers doctrine. However, this may not be the appropriate balance where the rights or duties at issue are implicit/unenumerated and the separation of powers is expressly stated. Thus, the balance to be struck depends on the case at issue.

Enforcing Children’s Socio-economic Rights: Part of the Courts’ Duty under the Separation of Powers? This chapter has established that it is possible to characterise the judicial enforcement of children’s socio-economic rights as an encroachment on the separation of powers doctrine justified by the courts’ obligation to uphold constitutional rights. However, there is another way of conceptualising this issue; namely, construing the courts’ duty to uphold constitutional rights as an aspect of the judicial function under the separation of powers. Under such a view, where the courts fail to do so, this results not only in a breach of the constitutional rights in question but also of the separation of powers doctrine itself. In other words, judicial inaction in the face of a constitutional question constitutes an abdication of the judicial function, resulting in a contravention of the separation of powers. Byrne and Binchy ask what the courts are to do when the executive, in breach of undertakings made to them, simply neglects to adopt any policy that will vindicate the constitutional rights of a citizen which it has already breached?235 Declarations, which have proven conclusively to be ineffective, cannot be the solution. At this point, courts reach a defining moment. They can surrender the judicial function to the might of the executive [and thereby fail to satisfy their duty under the separation of powers to ensure that the constitution is upheld] or they can assert the judicial function in the vindication of the constitutional rights which have been violated.236

In their view, if the courts adopt the former course, everything may appear at the surface to continue as before, but the judicial function will have 235 236

Byrne and Binchy, above n 25, 123. Ibid.

Ensuring the Vindication of Children’s Socio-economic Rights 181 been sacrificed at the unconstitutional insistence of the other organs of the state. If the courts adopt the latter course of action, there can, of course, be no guarantee that the executive will comply with the courts’ orders.237 However, where the executive fails to comply with a court order, it (rather than the court) will precipitate a constitutional crisis and the courts will have been faithful to their duty of vindicating constitutional rights.238 According to this understanding, where the courts’ enforcement of socio-economic rights is necessary in order to ensure that such rights are protected (and thereby to ensure that the courts fulfil their duty under the separation of powers doctrine), such activity may be regarded as being required in order to prevent a violation of the separation of powers. Therefore, it cannot be considered to violate the doctrine itself. Returning to the rationales for the separation of powers doctrine discussed earlier in the chapter, a judicial failure to uphold constitutional rights will have clear implications for the achievement of the aims underlying the doctrine. For instance, if one takes the view that the primary purpose of the doctrine of the separation of powers is to prevent a concentration of power in one branch of government (ie the ‘balancing version’ of the doctrine), a refusal by a court, for example, to grant a mandatory order or other necessary relief against an elected branch in the face of government failure to comply with declaratory orders will result in an over-concentration of power in the non-judicial branch of government. This would result in the separation of powers being violated. Within modern constitutional democracies, the task of reviewing state action for compliance with fundamental human rights is generally assigned to the courts or a similar adjudicative body. As I and others have argued elsewhere, ‘where a court reviews governmental decisions, policies or programmes for compliance with fundamental human rights, there is a “flow of power” to the judiciary that is part of the very notion of balance of powers in democracies based on human rights’.239 A judicial refusal to enforce children’s socio-economic rights essentially operates to render the elected branches of government, rather than the courts, the ultimate arbiters of socio-economic rights issues, resulting in a distortion of the roles of the respective institutions in a democracy. It also risks according unchecked power to the legislature and executive in relation to law- and policy-making pertaining to such rights, thereby violating a ‘rule of law’-premised conception of the separation of powers also.

237

Ibid. Ibid. 239 A Nolan, B Porter and M Langford, The Justiciability of Economic and Social Rights: An Updated Appraisal, NYU Center for Human Rights and Global Justice Working Paper No 15/2007, 13. 238

182 A Question of Balance? This is also an appropriate point at which to make a brief comment on the claim that the judiciary should avoid dealing with children’s socio-economic rights issues on grounds of institutional incapacity under an ‘efficiency’ version of the separation of powers. Feeley and Rubin have pointed out that an instrumental argument of this nature cannot provide an absolute prohibition against one particular branch of government engaging in activities that are normally associated with another; at most it offers prudential reasons to proceed with caution.240 In light of the courts’ obligation to uphold the constitution, judicial deference solely on the ground of alleged institutional incompetence (under an efficiency version of the separation of powers) in cases where constitutional rights have been violated is likely to be unjustifiable. This holds particularly true if it is accepted that the courts’ duty to ensure that constitutional rights are vindicated is a part of their function under the separation of powers.241 CHILDREN IN DEMOCRACY, THE COURT’S ROLE AS GUARDIAN OF THE CONSTITUTION AND ITS APPROACH TO THE SEPARATION OF POWERS

The final issue to be addressed in this chapter is linked to the claims made in the previous two chapters in relation to children’s effective exclusion from democracy. What implications might, or should, this have for the role of the court as guardian of constitutional rights and, furthermore, for the court’s approach to the separation of powers in the context of children’s socio-economic rights? As children cannot assume that the legislature and executive will protect their rights, the courts’ role as ‘guardian of the constitution’ is of greater significance to them than to others in society who can make their voices heard through the democratic system. Chandler has pointed out that, often, the lower the capacity of the human subject, the greater the need for some form of external assistance or grant of resources or regulatory power, in order to ensure that rights are guaranteed and implemented.242 The lack of capacity of rights-holders to ensure that rights are realised means that human rights advocates must focus on ‘a beneficent agency, external to the political sphere, to achieve political ends’.243 This is particularly true of children for whom there is a recognised duty to act to fulfil constitutional human rights needs, but no politically accountable institution that can be

240

Feeley and Rubin, above n 6, 314. For more on the institutional capacity of the judiciary in the context of socio-economic rights adjudication, see Chapter 5. 242 D Chandler, ‘Universal Ethics and Elite Politics: The Limits of Normative Human Rights Theory’ (2001) 5 International Journal of Human Rights 72, 83. Chandler defines this capacity as ‘autonomy’. 243 Ibid 84. 241

Children’s Socio-economic Rights 183 relied upon to do so. Considering the kind of powers that are required to ensure that children’s rights are vindicated, it seems probable that a state institution is best suited to this purpose. In the jurisdictions that are considered in this work, the judiciary seems to be the most appropriate organ for this task. Thus, children’s lack of capacity will render them more reliant on the courts to ensure that their rights are enforced by the elected branches of government than other bearers of constitutional socio-economic rights. This enhanced dependence may be regarded as imposing a correspondingly heightened duty on the courts in relation to children’s rights. As stated above, one of the arguments made against the courts’ intervening to enforce children’s socio-economic rights is the fact that decisions involving public resources and policy-making are more appropriately taken by an accountable legislature and executive and for the courts to get involved in these areas would be a breach of the separation of powers. In the case of a governmental failure in relation to distributive justice, including vindicating socio-economic rights, the affected persons should present their petition to the elected branches of government rather than to the courts. I have already argued in Chapter 2 that this course of action is not open to children due to, amongst other things, their limited organisational capacities, developmental and economic deficit and inability to rely fully on others to ensure that their interests are forwarded in the democratic process. The courts should take this exclusion of children from law- and policy-making processes into account when considering the boundaries of permissible judicial action aimed at ensuring that children’s constitutional rights are vindicated. Earlier, I presented the claim that judicial deference in the face of constitutional rights violations may qualify as a breach of the court’s duties to uphold rights enshrined in the constitution, as well as possibly amounting to a violation of the courts’ duty under the separation of powers doctrine itself. Judicial deference in the face of constitutional rights violations is particularly problematic where a court bases its inaction on the claim that certain spheres/functions are reserved to the elected branches of government, without having regard to the fact that the people whose constitutional rights are at issue have no way of exerting control over these organs. Where the vindication of constitutional rights requires action to be taken in relation to policy-making or public resource allocation, it seems unacceptable for the courts to refuse to become involved in activities having implications for those areas when it is clear that, in the absence of judicial intervention, such rights will almost certainly not be vindicated by the elected organs of government due to the latter’s lack of dependence upon, and indifference towards, the rights-holders in question.244 Indeed, when dealing with chil244 The inability of children to forward their interests and ensure the vindication of their rights through democratic processes was not expressly considered at all by either of the apex courts in TD and TAC. However, Kelly J, who delivered the High Court decision in TD,

184 A Question of Balance? dren’s rights cases, the courts should be aware that a court order is one of the few means by which children’s socio-economic rights and child poverty issues can be firmly established on the agenda of the elected branches of government. The courts thus have a key role to play in countering executive and legislative biases or omissions in relation to such rights. Furthermore, in the absence of a ‘children’s constituency’, a citation for contempt of court may be regarded as the closest thing to holding these branches to ‘account’ for failing to vindicate children’s rights.245 Where the courts recognise that children lack the mechanisms available to other groups in society to ensure their rights are fulfilled, they must take this into account when defining the limits of action that they are prepared to take on children’s ‘behalf’ to ensure that such rights are protected. If, as in the TAC and TD cases, the court has reason to believe that the elected branches of government will not, on their own initiative, take the necessary action to ensure that children’s rights are vindicated, the courts must direct them to do so, even to the extent of controlling their discretion in law- and policymaking by means of a positive order. Therefore, the courts may (and possibly are even obliged to) play a more active role, and employ more wide-ranging measures, in order to ensure the enforcement of children’s rights than they may in relation to the rights of others. This is so as to ensure that they satisfy their duty to uphold children’s constitutional socio-economic rights. Thus far, I have argued that the courts’ adoption of a more active role and employment of more wide-ranging measures in order to ensure the enforcement of children’s socio-economic rights is justifiable in light of their constitutional duty to ensure that children’s constitutional rights are vindicated by all branches of government. I have not yet dealt with whether such activity is consistent with the courts’ duty to uphold the separation of powers. There are two possible answers to this question. The first answer is premised on an acceptance that the court’s duty to protect constitutional rights is an inherent part of its function under the separation of powers. From this perspective, the infringement on the spheres of authority of other governmental organs (resulting from the courts’ giving effect to children’s constitutional socio-economic rights) is acceptable under the separation of powers where this is necessary to ensure that these rights are vindicated.

during one of the many cases involving troubled children that came before him, alluded at least once to the fact that children could not vote and did not seem to be high on the Minister for Health and Children’s agenda (M Carolan, ‘Minister’s commitment to children challenged’, Irish Times, 27 July 2000). 245 Here, by a ‘children’s constituency’ I mean a body or group that will hold the elected branches of government to account electorally for failure to vindicate children’s rights/interests.

Conclusion 185 On the other hand, if one does not regard the court’s duty to protect constitutional rights as being part of its function under the separation of powers, then one is left with a situation where the courts must attempt to reconcile two (potentially) conflicting constitutional obligations: the duty to uphold the separation of powers doctrine and their duty to protect constitutional rights. One might infer that this brings us back to exactly the same balancing exercise that I claimed was carried out by the Constitutional Court in TAC and Denham J in TD. However, I would argue that there is an additional factor to be considered when striking the balance between duties in the context of children’s socio-economic rights that was not taken into account by either of these courts; that is, the inability of children to rely on governmental organs other than the courts to protect and vindicate their rights. If the courts take the position of children in democracy into account, then the balance struck is more likely to be in favour of the courts’ duty to protect children’s constitutional socio-economic rights, rather than their duty to uphold the separation of powers doctrine. This is because of the implications that the exclusion of children from democracy will have for the reasoning underlying the separation of powers, particularly those founded on a view of the elected organs of government as accountable and responsive to all.

CONCLUSION

In this chapter I presented and evaluated different claims in order to argue that the separation of powers doctrine does not constitute an absolute bar on the courts acting to ensure that children’s socio-economic rights are vindicated in instances in which the elected branches of government have not done so. I did this by exploring three key issues. The first was whether or not the courts giving effect to children’s socio-economic rights falls within the parameters of the judicial function as traditionally understood under the separation of powers doctrine. Secondly, I asked if the courts’ duty with regard to upholding constitutional rights can constitute a justification for the infringement of the separation of powers doctrine. Finally, I considered the implications that the adjudication of children’s rights has, or should have, for the courts’ role as guardians of the constitution and their approach to the separation of powers. Ultimately, I concluded that the judicial enforcement of children’s socio-economic rights is permissible either as (a) a legitimate aspect of the courts’ function as guardians of constitutional rights, which may, in some circumstances, take precedence over their duty to enforce a strict separation of powers; or (b) as a legitimate aspect of the courts’ function under the separation of powers doctrine itself in the context of children’s socio-economic rights.

186 A Question of Balance? So far, this work has considered the legitimacy of judicial enforcement of children’s socio-economic rights and has largely concluded that such activity is legitimate in the context of a liberal constitutional democracy. The remaining chapters will address the issue of whether, even if such activity is legitimate, it will, in fact, prove efficacious in terms of ensuring the realisation of children’s rights.

5 The Issue of Efficacy INTRODUCTION

T

HIS BOOK CENTRES on the circumstances in which the courts can or should give effect to the socio-economic rights of children. Thus far, I have focussed on whether the courts ‘can’ do this, in terms of the legitimacy of such activity in the context of a liberal constitutional democracy. It is now time to evaluate whether or not the courts ‘should’. Specifically, if the courts do seek to give effect to children’s socio-economic rights, when, and in what circumstances, will this actually work in practice? Answering this question entails an analysis of the efficacy of the judicial enforcement of children’s socio-economic rights, which is presented in this chapter and the next. The overall efficacy of such judicial activity is premised upon a range of different elements, particularly institutional capacity and the enforcement/ implementation of court decisions involving children’s socio-economic rights.1 Therefore, in terms of structure, this chapter opens with a specification of what I mean by ‘efficacy’, including an explanation of the significance of the direct and indirect effects that may result from courts’ efforts to give effect to children’s socio-economic rights. The second part of the chapter addresses assertions based on the alleged incapacity of the courts to deal with issues that may arise in the context of adjudication involving children’s socio-economic rights. Linking in with the growing body of research on the enforcement (or not) of judicial decisions on socio-economic rights,2 1 It is important to note that I am not arguing that the fact that the courts are institutionally capable of enforcing socio-economic rights means that such activity will automatically prove efficacious. However, as I argue below, if the courts are institutionally incapable of doing so, then their efforts cannot prove efficacious. With regard to enforcement/implementation, while a judgment may be enforced, it may yet prove inefficacious in terms of ensuring children’s enjoyment of socio-economic rights. In contrast, as discussed later in this chapter, a nonenforced decision may still result in an improvement in the realisation of children’s socioeconomic rights. Thus, the questions of institutional capacity and implementation are linked to, but not constitutive of, ‘efficacy’. 2 See, eg the papers delivered at a symposium on Enforcement of ESCR Judgments, Bogotá, Colombia, 6–7 May 2010. For an overview of these papers, see ESCR-Net, De Justicia and the Norwegian Human Rights Centre, Enforcement of ESR Rights Judgments: Analytical Report (New York, ESCR-Net, De Justicia and University of Oslo, 2010); D Brinks and V Gauri, ‘A New Policy Landscape: Legalised Social and Economic Rights in the Developing

188 The Issue of Efficacy I conclude by identifying a number of elements that increase or diminish the likelihood of success where the courts seek to give effect to children’s socio-economic rights. This chapter contains numerous domestic examples that lend support to specific claims made herein. However, extrapolating from a limited number of individual instances does not constitute adequate support for making broad-ranging, unqualified arguments in the way that reliance upon a range of comprehensive empirical studies would, for instance. Furthermore, the examples presented are inevitably embedded in particular cultures and contexts that may not ‘translate’ to other jurisdictions. Indeed, my conclusions in this chapter are necessarily preliminary given the relative dearth of existing child socio-economic rights-specific case law.3 It should be noted, however, that they conform with, and are supported by, the findings of others in relation to the factors affecting the implementation and effectiveness of socioeconomic rights adjudication. While the cases and experiences referred to do not constitute support for a claim that the courts and judicial enforcement are uniformly capable of bringing about the realisation of children’s socio-economic rights, they are illustrative of the circumstances in which the judicial enforcement of children’s socio-economic rights will be efficacious. They thus serve as a clear challenge to those who would claim that the courts and adjudication are incapable of enforcing such rights. EVALUATING EFFICACY

Importantly, the aim of this chapter is not to assess the ability of the courts or adjudication to bring about broad social change or to make social policy.4 Nor does it seek to evaluate the efficacy of the employment of litigation strategy in general. Although many of the arguments that are considered here also arise in relation to those more broadly defined issues, the goal of the judicial behaviour under examination in this book is to bring about the enforcement or realisation of children’s rights. This aim is considerably more limited than those envisaged by proponents of the court

World’ in V Gauri and D Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York, Cambridge, 2008) 303, 320–24; S Gloppen, ‘Courts and Social Transformation: An Analytical Framework’ in R Gargarella et al (eds), Courts and Social Transformation in New Democracies (Aldershot, Ashgate, 2006) 35, 54–56. Thus far, none of the research on this issue has focussed on the enforcement of children’s socio-economic rights decisions. 3

See, eg the sources discussed above n 2. For a discussion of factors affecting the capacity of courts to bring about social transformation, particularly in relation to socio-economic rights adjudication, see, eg Gloppen, above n 2. 4

Evaluating Efficacy 189 as a mechanism for bringing about social or institutional reform5 and it is in terms of this that the ‘efficacy’ of the courts’ efforts to give effect to children’s socio-economic rights will be evaluated. When attempting to present a picture of the full impact of particular judicial decisions, it is not sufficient to restrict one’s analysis to the direct effects of the decision on the parties, the immediate factual situation before the courts, and the law or policy under consideration. This is because decisions in which a court gives effect to children’s socio-economic rights can have numerous indirect effects that may, in turn, have implications for our assessment of the overall efficacy of the adoption of the courts giving effect to children’s socio-economic rights. Indeed, the importance of the indirect effects of socio-economic rights cases are increasingly recognised by academics and advocates alike.6 Thus, as highlighted in the Foreword, any adequate consideration of the efficacy of judicial enforcement of socioeconomic rights does not solely consist of an examination of the direct legal, policy and other effects of particular instances of judicial enforcement of children’s socio-economic rights. It should also involve a discussion of the indirect effects of this activity, where these include a subsequent change in law, administrative policy or societal attitudes that impacts upon the enforcement of children’s socio-economic rights. Furthermore, while the primary focus of a consideration of the efficacy of particular instances of adjudication will centre on the achievement (or not) of the rights of the children whose rights are being litigated before the courts, it is crucial not to ignore the broader implications that such adjudication may have for the socio-economic rights enjoyment of other children.7 The potential indirect effects of judicial enforcement of children’s socioeconomic rights are many and varied.8 They include a heightened public awareness of children’s socio-economic rights-related issues. This may serve to exert pressure on the elected branches of government to implement the

5 That is not to say that the judicial enforcement of children’s socio-economic rights will not result in social reform: the ‘transformative’ nature of socio-economic rights suggests that successful litigation involving such rights may well have this outcome. 6 For an argument that a consideration of the impact of socio-economic cases should go beyond the direct, concrete impact of a particular decision, see César Rodríguez Gravito, ‘Assessing the Impact and Promoting the Implementation of Structural Judgments: A Comparative Case Study of ESCR Rulings in Colombia’, paper delivered at symposium on Enforcement of ESCR Judgments, Bogotá, Colombia, 6–7 May 2010. He argues that socioeconomic rights decisions have a range of direct and indirect material and symbolic effects. 7 For more on the impact of child socio-economic rights litigation on the rights enjoyment of non-litigating children, see Chapter 6. 8 Evidence for indirect or ‘extra-judicial’ effects may be found in public opinion data (ie surveys or polls), media coverage and in public and elite action supporting measures for the promotion and vindication of children’s socio-economic rights. (This is an adaptation of the sources of evidence of ‘extra-judicial effects’ of court decisions set out by G Rosenberg, The Hollow Hope: Can Courts Bring About Social Justice?, 2nd edn (Chicago, IL, University of Chicago Press, 2008) 8).

190 The Issue of Efficacy court’s decision in a timely and effective way. Another such effect might be that the implementation of a particular order encourages general law and policy review, and reform by the executive and legislature beyond that required by the order in a specific case. Furthermore, the establishment of a precedent may have the effect of pressurising politicians to examine other laws or policies which relate to children’s socio-economic rights, resulting in the amendment or improvement of measures which might be open to a similar challenge in the future. More generally, a particular decision may have the result of affecting the intellectual climate, influencing and altering the views and ideas of politicians and society in general. In turn, this may increase the likelihood that future laws, policies and administrative decisions will take account of, or be more favourable towards, children’s socio-economic rights. Of course, decisions in which the courts give effect to children’s socioeconomic rights may also have negative indirect effects in terms of the enforcement of children’s socio-economic rights. These might include the government being spurred on to enact a change in the law or to call a constitutional referendum so as to reverse or frustrate the court’s ruling. Alternatively, a decision may give rise to a backlash from politicians or more conservative societal factions. A final possible negative indirect effect might be that, having seen the court give effect to children’s socio-economic rights, the elected branches will use this as an excuse for doing nothing. Thus, the court’s activities would serve as a somewhat perverse incentive for legislative or executive apathy, based on the belief that the courts have assumed the task of remedying the problem. The indirect effects of decisions in which a court gives effect to children’s socio-economic rights are of particular significance when such a decision is subsequently reversed, and, thus, effectively ‘cancelled’ by a higher court. In this instance, the direct legal effects of the decision are likely to be very limited or non-existent. Thus, any indirect effects that there may be will probably be relatively more important than they would be where the higher court upholds the ruling of the lower one. On the one hand, reversed decisions involving the judicial enforcement of children’s socio-economic rights may generate increased societal consciousness of children’s socio-economic rights issues (due to media focus on a lower court victory). This might lead to the legitimation of children’s socio-economic rights as a political issue, as well as mobilising and concretising support for them. Alternatively, negative publicity generated by the earlier ruling, or discussion of the subsequent one, may serve to put pressure on the government to take action, regardless of the final conclusion of the courts. Finally, even where a decision in which a court has given effect to children’s socio-economic rights is later reversed, the state may already have followed the orders of the lower court to some extent, leading to an improvement in the socio-economic conditions of

A Case of Institutional Incapacity? 191 children, resulting in a greater level of enjoyment of their socio-economic rights.9 That said, where recourse to the courts is the only avenue available to ensure the vindication of children’s socio-economic rights, a reversal of a more positive earlier decision by a superior court is likely to have a very negative impact upon the desired result of enforcing children’s rights due to the difficulties it will cause for future litigants and the message that a reversed judgment may send to the state about its obligations to give effect to children’s socio-economic rights. COURTS AND SOCIO-ECONOMIC RIGHTS: A CASE OF INSTITUTIONAL INCAPACITY?

If courts are institutionally incapable of dealing with socio-economic rights issues, then judicial efforts to give effect to children’s socio-economic rights will prove inefficacious. Therefore, if I am to argue successfully that courts can be effective in terms of bringing about the enforcement of children’s socio-economic rights, arguments advanced that courts are institutionally incapable of doing so must be addressed and rebutted. Such arguments tend to be linked to the claims addressed earlier in this work about the legitimacy of courts’ enforcing children’s socio-economic rights. For instance, Scott and Macklem point out that: On the one hand, an alleged lack of institutional expertise reinforces the view that it would be illegitimate for the courts to delve into constitutional adjudication of social rights ... On the other hand, the ideologically driven sense of illegitimacy provides a dispositional readiness for the judiciary and other legal actors to marginalise arguments geared toward the expansion and transformation of the courts’ capabilities to render the judiciary a more appropriate institution for dealing with such matters.10

In this chapter, I will not attempt to offer a comparative analysis of the institutional attributes of the courts, executive and legislature. I do not argue that courts will inevitably reach better and more progressive decisions in relation to the enforcement of children’s rights than legislatures as the result of superior deliberative reasoning powers or other characteristics often associated with judges. Instead, I will limit myself to rebutting flawed presumptions about the institutional capacity of the courts. I accept that institutional considerations often play a central role in constitutional

9

Admittedly, this may also be viewed as a ‘direct effect’ of the earlier court’s decision. C Scott and P Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141 University of Pennsylvania Law Review 1, 24–25. 10

192 The Issue of Efficacy decisions.11 I am also conscious of the problems that have arisen with regard to the effective enforcement of children’s socio-economic rights by courts, particularly those problems that result from judicial attitudes towards, and construal of, children’s socio-economic rights.12 Crucially, however, my arguments in this work focus primarily on whether or not the courts are capable of dealing effectively with socio-economic rights issues, rather than on whether they are the optimum body to do so. The broad assertion, that adjudicating socio-economic rights issues is beyond the institutional capacity of the judicial branch can be broken down into four primary claims.13 These are: (i) that courts suffer from an ‘information deficit’ that precludes them from dealing effectively with socio-economic rights issues; (ii) that the judiciary lacks the necessary expertise, qualification or experience to deal with socio-economic rights issues; (iii) that the courts are incapable of dealing successfully with ‘polycentric’ tasks, such as those entailed in adjudication of socio-economic rights; and (iv) that the courts cannot deal effectively with socio-economic rights issues due to the limited tools and remedies available to them. Although these claims are often made in relation to the court dealing with socio-economic rights per se, the institutional limitations of the courts are rarely emphasised by critics of socio-economic rights when the courts are dealing with negative obligations. This is because, as stated in Chapter 1, in such instances, courts are being required to evaluate the constitutionality of state action, rather than state inaction.14 Thus, it is arguably the nature of the obligation imposed by the right rather than that of the right itself that poses the alleged challenge to the court’s capacities. There is a considerable degree of interrelationship and overlap between claims (i) to (iv). Although each one will be considered in turn, the arguments made with regard to each claim are strongly linked to those made in relation to others. In addition, several of the assertions dealt with below

11 For a justification of the claim that institutional considerations play a central role in constitutional decisions and that they should be a central feature of any analysis of constitutional law, whether descriptive or prescriptive, see N Komesar, ‘Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis’ (1984) 51 University of Chicago Law Review 366. 12 Judicial attitudes towards, and construal of, children’s socio-economic rights will be discussed in Chapter 6. 13 A version of the following section was contributed by the author to A Nolan, B Porter and M Langford, The Justiciability of Social and Economic Rights: An Updated Appraisal, NYU Centre for Human Rights and Global Justice Working Paper Series No 15/2007. 14 See Chapter 4 for further discussion of why critics of socio-economic rights are more comfortable with judicial review of state action than they are with judicial review of state inaction.

A Case of Institutional Incapacity? 193 are premised on presumptions about the nature of socio-economic rights. Consequently, the arguments I make in this section are also linked with those set out in Chapter 1 in relation to flaws in respect of the nature of socio-economic rights. Ultimately, the aim of my arguments here is not to present an ‘idealised’ or ‘naïve’ image of the courts. Nor is it to disparage legislatures and other majoritarian governmental institutions. Rather, I seek to counter claims about the courts’ institutional limitations that are weakly-supported, unduly pessimistic and dismissive of courts’ actual and potential abilities. This will contribute to an understanding of the circumstances in which the courts can and should enforce children’s socio-economic rights. An Information Deficit? One might suggest that courts should not deal with cases involving socioeconomic rights because they lack the information, or the ability to acquire the information, necessary to reach a satisfactory decision. The information required to resolve socio-economic rights issues is likely to include the rationales for, and implications of, specific policies concerning the allocation of resources. Such information is necessary for the courts to evaluate the conformity of state action, or inaction, with the state’s constitutional obligation to vindicate socio-economic rights. Notably, many of the claims regarding the inability of the judges to collect or manage the information necessary to deal effectively with socioeconomic rights claims are based on an ‘adversarial’ model of adjudication. In contrast, under the civil law ‘inquisitorial’ systems operating in continental Europe (ie France, Italy and Germany) and many Latin American countries, judges have far greater responsibilities in relation to fact-finding. In these systems, the trier of fact and law has an active role in the litigation, which has the form of a bureaucratic investigation. In general, counsel are relatively passive and no formal burden of proof is set on any party. Few formal rules restrict the admissibility of evidence.15 Due to the court’s more extensive role with respect to identifying and investigating disputed issues of fact, the court is less reliant on the parties to present them with information they require in order to reach a conclusion. Judges may actively seek the information they regard as necessary and regularly appoint their own expert witnesses.16 15 See W Renke, ‘Litigation and the Adversary System’ in University of Alberta Faculty of Law and Alberta Law Foundation (eds), Public Legal Education: A Guide to Canadian Law (Alberta, University of Alberta Faculty of Law and Alberta Law Foundation), available at www.law.ualberta.ca/research/courts/adversary_system.htm. 16 For more on this using the example of the (then) West German courts, see J Langbein, ‘The German Advantage in Civil Procedure’ (1985) 52 University of Chicago Law Review 823.

194 The Issue of Efficacy Whether made in relation to civil, common or mixed legal systems, claims about the courts’ alleged ‘information deficit’ are dubious for a number of reasons. First, courts are not expected to be omniscient when dealing with other legal issues so it seems bizarre for critics to expect perfect knowledge from judges when adjudicating socio-economic rights. Secondly, even if one accepts the presumption that the courts initially suffer from an information deficit with regard to matters arising in socio-economic rights cases, this does not mean that they are incapable of acquiring such information, either in a particular case or generally. Even in jurisdictions without a history of institutional or structural reform litigation, such as that experienced in the United States, the information-gathering tools and mechanisms available to courts are often much broader than is generally recognised. Judges can be provided with information by a variety of actors. Lawyers of the parties in a case will have the primary responsibility for ensuring that the requisite information is presented to the court. Where lawyers want judges to make particular decisions in relation to socio-economic rights, they will have to produce the evidence necessary to convince judges that their proposed course of action is the one the court should adopt. Such information will also be subject to adversary review, encouraging parties to bring as much detailed supporting evidence before the courts as possible and deterring them from presenting weak or inaccurate material. Bearing in mind that judges are generally very reluctant to interfere with decisions on social and financial policy-making made by the democratically elected executive, they are extremely unlikely to make a ruling against the state unless provided with exhaustive evidence that this is constitutionally necessary.17 This may require lawyers to satisfy a higher burden of proof in practical terms than they would have to in relation to civil and political rights or other legal issues with which the courts are more comfortable in dealing. During hearings, courts are free to seek further evidence from lawyers on both sides, which furnishes them with a chance to seek additional information proactively. Another opportunity to acquire additional information that is available to courts in many jurisdictions is their ability to admit a party other than the litigants and the defendants as an amicus curiae18 (‘friend of the court’) or third party intervener. Furthermore, 17 An example of this was the case of Minister of Health v Treatment Action Campaign (No 2) (2002) (5) SA 721 (CC) (TAC) discussed in Chapter 4, where the plaintiffs provided an enormous amount of detailed evidence covering issues including the cost, safety and effectiveness of Nevirapine. In contrast, the government’s case included many very speculative statements, unsupported by evidence, which resulted in the court relying on the information provided by the plaintiffs. It is arguable that the government’s failure to provide evidence to support its position was largely due to the fact that it did not exist. Certainly, the extensive acceptance and reliance of the court on evidence provided by the plaintiffs would appear to suggest that this was the court’s view. 18 The procedures and conditions for admission of amicus curiae vary from jurisdiction to jurisdiction. In some domestic legal systems, the procedures and conditions for the admission

A Case of Institutional Incapacity? 195 several Latin American superior courts, including those of Colombia and Brazil, have ordered ‘public hearings’ so as to avail themselves of more information from a wide range of stake-holders in reaching their decisions. If, as discussed below and in Chapter 6, the court is prepared to adopt a ‘dialogic’ approach to review, then this will facilitate such information to be introduced throughout the judicial process, including at the stage of remedy formulation. Even in jurisdictions where there is no provision under the legal system for mechanisms such as amicus curiae, the tools available to provide courts with information should not be underestimated. There is nothing about the nature of the information needed to resolve socio-economic rights cases that precludes its deliverance from the witness stand. Expert witnesses can be used to supply information required by the courts in order to reach a decision in relation to socio-economic rights. Furthermore, there is a steadily increasing body of research on the monitoring of the implementation of socio-economic rights.19 The growing range of methodologies for measuring state compliance with socio-economic rights in terms of law, policy and practice includes the development of indicators, benchmarks and the employment of rights-based budget analysis techniques. This has resulted in an expanding body of relatively accessible and easily understood information relating to state compliance or non-compliance with socio-economic rights in a range of different contexts. Such information can play a key role in assisting courts to arrive at a decision in children’s socio-economic rights cases. One excellent example of such evidence being of assistance to a court in finding a violation of a child’s constitutional socio-economic right is Asociación Civil por la Igualdad y la Justicia v GCBA.20 This case concerned historic underspending of resources allocated by the legislature to education, resulting in inadequate development and maintenance of of amicus curiae are expressly set out in the rules of the court (eg Canada, the United States and South Africa). In others, they have been enunciated in case law (eg Australia, England) or legislation, or a variety of means (eg Ireland). 19 See, eg OHCHR, Report of the High Commissioner for Human Rights on Implementation of Economic, Social and Cultural Rights, UN Doc E/2009/90 (8 June 2009); P Hunt, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Report on Health Systems and Human Rights-based Approach to Health Indicators, UN Doc E/CN.4/2006/48 (3 March 2006); and OHCHR, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, UN Doc HRI/MC/2008/3 (6 June 2008). Thus far, only a limited amount of this work has been carried out by academics. Notable exceptions include JV Welling ‘International Indicators and Economic, Social and Cultural Rights’ in (2008) Human Rights Quarterly 30; T Landman and E Carvalho, Measuring Human Rights (New York, Routledge, 2010); S Hertel and L Minkler (eds), Economic Rights: Conceptual, Measurement and Policy Issues (New York, Cambridge University Press, 2010) and QUB Budget Analysis Project, Budgeting for Economic and Social Rights: A Human Rights Framework (Belfast, Queen’s University Belfast, 2010). 20 Expte No 23360/0, 19 March 2008.

196 The Issue of Efficacy infrastructure, and the exclusion of children from pre-primary schooling due to an alleged shortage of school places caused by a lack of school facilities.21 A key element of the applicants’ case was the alleged failure of the government to give effect to its duties to progressively realise the right to education and to make use of maximum available resources.22 The applicants presented budget analysis-based evidence that demonstrated that the government had consistently underspent resources available to it during the previous five years, with one three-year period witnessing non-utilisation of funds allocated for infrastructure on average of around 32.3 per cent. While budget allocations for education were not diminishing from year to year, high levels of underexpenditure evidenced a failure of the state to employ all available resources to progressively realise the right to education. Following an earlier judgment in favour of the applicants, the Court of Appeal (Cámara de Apelaciones en lo Contencioso Administrativo y Tributario de la Ciudad de Buenos Aires) found, amongst other things, that the evidence in the case demonstrated persistent underexecution of the available budget. This violated the state’s obligation to adopt adequate measures to make the right to education of children between the age of 45 days and five years effective to the maximum extent of the state’s available resources. As Sigal and Antunes highlight: Here, budget analysis improved the quality of the judicial discussion, and contributed to the courts’ capacity to take a decision based on all relevant information and concrete data. This data was crucial to eliciting the truth concerning the Government’s behaviour, and to neutralise its vague excuses.23

Inevitably, there will be situations in which the court will not have all of the information that we might consider necessary to reach a decision but this is true of litigation of any kind, not just that involving socio-economic rights. There is no reason to believe that a court would proceed to make a ruling in a socio-economic rights case when it lacks what it considers to be sufficient information to do so. This will be especially true where courts are being asked to reach a decision on the positive obligations imposed 21 This account of the case is taken from M Sigal and D Antunes, ‘Budget Analysis and the Right to Education in the City of Buenos Aries’ (2010) 3 European Human Rights Law Review 317. 22 Here, the right to education was enshrined in s 24 of the Constitution of the City of Buenos Aires and formed part of the national constitutional hierarchy as a result of the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights being recognised as having constitutional status (Constitution of Argentina, s 75(22)). 23 Sigal and Antunes, above n 21, 321. Sigal and Antunes continue: ‘Any judicial restrictions arising from the deference that political branches deserve with regard to the selection of measures adopted to advance rights, is attenuated when the numbers clearly demonstrate a lack of commitment or effort on the part of that branch in relation to rights protection’ (ibid).

A Case of Institutional Incapacity? 197 by socio-economic rights, in light of the discomfort displayed by courts in many jurisdictions when asked to deal with such issues. Alternatively, it might be argued that, due to their lack of expertise in social and economic policy-making, the courts may not be able to identify the information needed to make a satisfactory decision involving socioeconomic rights issues. Furthermore, they may not be accustomed to the development of sufficient information with regard to the obstacles to implementation of orders they might make. The onus is on the defendant state and its representatives to ensure that the court is aware of the information required to hand down a ruling against the state. Considering the fact that the defendant state is likely (a) to have greater resources available to it than most litigants bringing socio-economic rights cases, and (b) to be better positioned in relation to providing the information required by the court, it does not seem unreasonable to presume that, where necessary, the state will be able to make a convincing case to the court that there is inadequate evidence before it to enable it to arrive at a finding that the state has failed to meet its constitutional obligations.

A Lack of Expertise, Qualifications or Experience? It has been argued that judges are generalists, not specialists.24 They are trained in the law, not in economics, public administration, sociology, psychology or child studies. Aside from the issue of the limited information available to them, they may lack the experience and skill to interpret and process such specialised information as they do receive,25 particularly that of a financial or policy nature. Judges should, therefore, avoid moving into areas (such as socio-economic rights) where these limitations will pose an obstacle to their dealing effectively with issues that may arise before them. There are several possible responses to this claim. First, it is open to debate that judges are indeed inherently ‘unspecialist’. Judges often specialise in different areas of law, whether through prior private practice or through development of special interests after appointment to the Bench.26 The ‘unspecialist’ nature of courts in the context of constitutional socioeconomic rights is particularly open to question when a country has, for example, a specialised constitutional court. Furthermore, while judges may not start off with expertise in particular areas, such expertise may

24

See, eg D Horowitz, The Courts and Social Policy (Washington, DC, Brookings, 1977) 25. For a detailed defence of this claim, see ibid 25–32. While Horowitz writes in an American context, many of his points apply equally to other jurisdictions. 26 The existence of judge-staffed ‘specialised’ courts (ie children’s courts, labour courts, etc) in many jurisdictions is testimony to this. 25

198 The Issue of Efficacy be acquired through on-the-job experience. Indeed, it is arguable that the judiciary’s regular exposure to differing cases that require them to deal with a broad variety of issues may mean that judges are predisposed towards ‘educating’ themselves in new areas, such as social and economic policy.27 Finally, the life or long-term tenure enjoyed by most judges is arguably a significant institutional advantage when it comes to acquiring the expertise necessary to deal with legal issues, including socio-economic rights adjudication. A related response to this claim has been to argue that the relative ‘specialist’ quality of non-judicial decision-makers is exaggerated. However, even if this is the case, it would not appear to justify replacing poor quality decision-making on socio-economic rights-related issues by non-judicial officials with poor quality decision-making by judges. Indeed, one commentator has argued that to allege that judges can only decide on those subjects in which they are specialists ‘would be conducive to an anti-democratic conception of law’, as it would mean that macro-economic decisions should always be left to a selected body of technocratic persons, which not only differ from judges but from the legislature and citizens, who are not experts on socio-economic related matters either.28 The assertion that the judiciary’s lack of specialisation renders them incapable of interpreting and applying such information on economic and social policy issues as they may receive seems a serious underestimation of judges. It also directly conflicts with the general acceptance that judges are well able to deal with socio-economic issues that arise in the context of traditional law school subjects such as tax law. As Sigal has observed, the inputs and outputs of public resources have the same logical structure and can and should be checked against legal standards.29 The notion that judges can look at how money is raised but not at how it is spent is inherently contradictory. There have been numerous instances of judges demonstrating competence in dealing with different kinds of information in the context of socio-economic rights cases, be it of a financial, social or other nature. For instance, the South African courts at all levels have engaged with and made findings on the basis of financial evidence. This has been a particular feature of cases in which the courts have considered budgetary constraints 27 Furthermore, depending on the resources available for judicial education, socio-economic rights-specific legal training might be provided for judges in order to improve their knowledge and understanding of these areas. 28 R Uprimny Yepes, ‘Should Courts Enforce Social Rights? The Experience of the Colombia Constitutional Court’ in F Coomans (ed), Justiciability of Economic and Social Rights: Experiences from Domestic Systems (Antwerp, Intersentia, 2006) 355, 382. 29 M Sigal, ‘Budget Analysis and Litigation’, paper presented at Conference on Budget Decisions and Economic and Social Rights, Belfast, 14–15 November 2009.

A Case of Institutional Incapacity? 199 in the context of state obligations to realise socio-economic rights.30 They have also dealt with information of a scientific and technical nature. In the recent Mazibuko decision, the South African courts were asked to consider what constituted ‘sufficient water’ to support life and personal hygiene for the purposes of article 27(1)(b) of the South African Constitution.31 Finding against the state, the High Court engaged with a range of evidence from sources including UN agencies and water experts, leading it to direct, amongst other things, that the defendant state-owned water company should provide the applicants and other similarly placed residents with a free basic water supply of 50 litres per person per day. In contrast, the Supreme Court of Appeal stated that it lacked the expertise to revise the City’s free water policy which made provision for 42 litres of free water to its residents.32 In its decision the Constitutional Court refused to determine a quantified amount of water as ‘sufficient’ for constitutional purposes. It did, however, engage with a range of different kinds of evidence, including that of a financial, scientific and social nature. While the Court’s decision has been criticised for its deferential stance vis-à-vis governmental failure to give adequate effect to socio-economic rights, it is worth noting that the Court did not premise its deference on an alleged institutional incapacity to process the requisite information.33 30 See, eg Soobramoney v Minister of Health (Kwazulu-Natal) 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC), where the Court considered evidence on, amongst other things, the limited resources available to the Provincial Department of Health and the particular hospital, as well as the cost of a particular treatment, and the demands that such treatment made on physical hospital resources. In light of this, the Court concluded that the state’s failure to provide renal dialysis facilities for all persons suffering from chronic renal failure did not constitute a breach of its constitutional obligation to take reasonable measures, within its available resources, to achieve the progressive realisation of the right of access to health services for all (s 27 CRSA). See also B v Minister of Correctional Services 1997 6 BCLR 789 (C). In holding that the state’s failure to provide appropriate anti-retroviral medication to prisoners constituted an infringement of the prisoners’ constitutional right to receive adequate medical treatment under s 35(2)(e) CRSA, the High Court considered evidence presented by the respondent on the cost of the combination therapy at issue and held that the defendant department had failed to establish that the prescribed combination therapy was not affordable by the state. 31 Mazibuko and others v City of Johannesburg and others [2009] ZACC 28. Section 27(1)(b) CRSA sets out the right of everyone to have access to sufficient water. 32 City of Johannesburg and others v Mazibuko and others, [2009] ZASCA 20, para 42. 33 Notably, the Court stated that, ‘ordinarily it is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realisation of the right. This is a matter, in the first place, for the legislature and executive, the institutions of government best placed to investigate social conditions in the light of available budgets and to determine what targets are achievable in relation to social and economic rights’ (Mazibuko, above n 31, para 61). For further analysis, see P Danchin, ‘A Human Right to Water? The South African Constitutional Court’s Decision in the Mazibuko Case’, EJIL: TALK!, 13 January 2010, available at www.ejiltalk.org/a-human-right-to-water-the-south-african-constitutionalcourt%E2%80%99s-decision-in-the-mazibuko-case/. Other recent judgments evidencing a

200 The Issue of Efficacy Even if there are cases in which the courts themselves deem the evaluation of the complex evidence at issue to be beyond them, in some jurisdictions it is possible for judges to ‘delegate’ this task. In the United States, courts are empowered to appoint special masters, advisory juries and court-appointed experts to help the court, inter alia, to evaluate evidence and resolve technical issues.34 The courts have frequently had recourse to such outside help for information and evaluation of proposals for relief.35 Similar mechanisms exist in Canada36 and other jurisdictions. In the Mehta case,37 the Indian Supreme Court addressed the issue of the non-implementation of legal prohibitions on child labour. Here, following an industrial accident in the town of Sivakasi in Tamil Nadu, the Supreme Court took suo mota cognisance of the issue of child labour in Sivakasi. Amongst other things, the Court created a three-person advocates committee and directed it ‘to visit the area and make a comprehensive report relating to the various aspects of the matter’.38 The recommendations of the Committee formed a key element of the Court’s analysis of the child labour problem, albeit that the Court did not simply adopt the Committee’s proposals wholescale when making its orders. All of the above would suggest that, where courts are presented with adequate information, and are willing to engage with it, there can be no prima facie presumption that they lack the institutional capacity to deal with evidence of a medical, financial or other nature. The Issue of Polycentricity In a seminal article, Lon Fuller argued that legal adjudication cannot deal successfully with ‘polycentric’ situations.39 In a judicial context, a deferential approach on the part of the Constitutional Court include Residents of Joe Slovo Community and others v Thubelisha Homes and others [2009] ZACC 16 and Nokotyana and others v Ekurhulni Metro and others [2009] ZACC 33. 34 For an explanation of how these individuals/bodies can be appointed and how they can operate to help the court deal with and come to conclusions concerning complex technical evidence, see J Wesley, ‘Note: Scientific Evidence and the Question of Judicial Capacity’ (1984) 25 William and Mary Law Review 675. For a discussion of criticisms of judicial reliance on court appointed experts in relation to evidence evaluation, see E DiLello, ‘Fighting Fire with Firefighters: A Proposal for Expert Judges at the Trial Level’ (1993) 93 Columbia Law Review 473, 484–85. For more on the problems posed by special masters, see ibid 486–90. 35 A Chayes, ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harvard Law Review 1281, 1300–1. 36 For instance, under Rule 52(1) of the Canadian Federal Courts Rules, the court may call on an assessor (a) to assist the court in understanding technical evidence; or (b) to provide a written opinion in a proceeding. 37 MC Mehta v State of Tamil Nadu and others 1996 (6) SCC 756. 38 Ibid para 4. 39 L Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353. Fuller described such situations as ones which are ‘many-centred’, where each crossing of strands is a distinct centre for distributing tensions (like in a spider web) (ibid 395). By pulling on one

A Case of Institutional Incapacity? 201 ‘polycentric’ situation is one in which a judicial decision will have complex repercussions that will extend beyond the parties, and the factual situation before the court, in unforeseeable ways. Fuller and others40 have alleged that courts are ill-suited to make polycentric decisions because of several features of the adjudicative process, principally the focussed, piecemeal and triadic nature of the average judicial proceeding, its adversarial nature, and the limitations on the types and amounts of evidence before the court. Fuller’s particular claims about the inappropriateness of the courts’ dealing with polycentric disputes can be challenged on numerous grounds, with Allison criticising Fuller’s negation of judicial expertise and investigative powers as well as his empirical neglect of continental variations of adjudicative process.41 However, his arguments have been very influential and, consequently, the ability of the courts to deal with polycentric tasks must be addressed in any work seeking to counteract claims about judicial incapacity in dealing with socio-economic rights issues. Fuller made it clear that, in his view, problems in the allocation of economic resources presented too strong a polycentric aspect to be suitable for adjudication.42 O’Regan J of the South African Constitutional Court has pointed out that determining a dispute with budgetary implications is a classic polycentric problem: ‘Each decision to allocate a sum of money to a particular function implies less money for other functions. Any change in the allocation will have a major or minor impact on all the other decisions relating to the budget’.43 As highlighted in Chapter 1, the generally resource-dependent nature of children’s socio-economic rights means that decisions with regard to such rights will nearly always have budgetary implications. Vindication of such rights will also often involve complex policy choices with far-reaching socio-economic ramifications.44

strand, you affect all the others, the extent to which each strand is affected being dependent upon its particular relationship to the strand pulled. The pulling of each strand has implications for every other strand and the knock-on effect of pulling one of the strands cannot be predicted. 40

See, eg Horowitz, above n 24, 59, quoting Fuller approvingly. J Allison, ‘Fuller’s Analysis of Polycentric Disputes and the Limits of Adjudication’ (1994) 53 Cambridge Law Journal 367, 378. Allison highlights that Fuller’s analysis of adjudication is very much based on an Anglo-American adversarial model of adjudication and generally either fails to take account of, or is disparaging towards, non-adversarial adjudicative procedures in other jurisdictions under which judges play a far greater role with regard to investigation. For an excellent critique of Fuller’s attitude to judicial expertise and investigation, see Allison, ibid 374–77. For further criticisms of Fuller’s thesis, see below n 49. 42 Fuller, above n 39, 400. 43 K O’Regan, ‘Introducing Socio-Economic Rights’, Opening Address given at a workshop on Giving Effect to Socio-Economic Rights: The Role of the Judiciary and other Institutions, 6–7 October 1998, published in (1999) 1(4) ESR Review 3, 6. 44 S Liebenberg, ‘The Protection of Economic and Social Rights in Domestic Legal Systems’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights: A Textbook, 2nd rev edn (The Hague, Kluwer Law International, 2001) 55, 60. 41

202 The Issue of Efficacy Given the necessarily finite resources available to the state and the fact that the satisfaction of the rights of different rights-holders and other state commitments/obligations is a macro-distributive question, courts need to be particularly conscious of the implications of their decision-making in terms of state policy and resources—and these implications may be enormous. For instance, Uprimny Yepes highlights that, between 1998 and 1999, the growth in tutela actions in relation to the right to health in Colombia resulted in an explosion in state expenditure needed to comply with healthrelated tutela decisions from US$2 million to 7 million.45 Indeed, statistics like this have led some to argue strongly against the Colombian Court’s judicial enforcement of socio-economic rights due to the negative impact of such upon public expenditure and the capacity of the state to realise the right to health in Colombia generally.46 In Chapter 4, I highlighted that the adjudication of constitutional socio-economic rights can be appropriately construed as the courts dealing with commutative, rather than distributive, justice. However, the fact that the courts are not directly administering distributive justice does not mean that their decisions will not have implications such that they should, at the very least, bear them in mind when enforcing children’s socio-economic rights. That said, echoing my comments above, it is not unreasonable to expect the generally better-resourced and positioned defendant state to bear the burden of explaining to the courts what the potential implications of particular judicial courses of action will be in terms of impacting upon the state’s ability to meet its obligations to parties other than those before the court. Polycentricity is not, however, exclusively a feature of adjudication involving socio-economic rights.47 Fuller himself stated that there are polycentric elements present in almost all problems submitted to adjudication.48 He argued that ‘[i]t is a question of knowing when the polycentric elements have become so significant and predominant that the proper limits of adjudication have been reached’.49 As stated in Chapter 1, civil and political 45

Uprimny Yepes, above n 28. See, eg S Kalmanovitz, ‘Las Consecuencias Económicas de los Fallos de la Corte Constitucional’ (1999) Economia Colombiana y Coyuntura Política (November) 124. 47 O’Regan acknowledges that ‘Civil and political rights may give rise to polycentric problems upon enforcement just as social and economic rights do. Often, however, the way in which the right is formulated will render the polycentric problem more or less peripheral to the issues before the Court’ (O’Regan, above n 43). 48 Fuller, above n 39, 398. 49 Ibid. Allison has criticised Fuller for the ‘vagueness’ of his concept of polycentricity, including his satisfaction with ‘a difference of degree’. He points out that without a protractor to determine differences in degree, the adjudicator cannot be certain where to draw the line between disputes which vary in the significance of their polycentricity (Allison, above n 41, 371–72). In other words, Fuller does not provide adequate guidance on where a dispute is so polycentric in nature that the courts should refrain from adjudicating it. Allison also points out that because the court’s determination of whether or not a dispute is polycentric is informed only by the parties in court, the court will not be able to be sure of the full extent of 46

A Case of Institutional Incapacity? 203 rights often have budgetary consequences, and adjudication that does not involve socio-economic rights may also have complex, unforeseeable policy and administrative implications. For instance, where a tax statute is found to be unconstitutional due to its violation of a non-socio-economic constitutional norm, the invalidation of the statute will have implications for people other than the parties to the case and will require the government to rethink both that particular piece of legislation and others that might be impugned for the same reason. It will also presumably involve the government having to find the ‘cancelled’ tax revenue from elsewhere, thereby having implications for its budgeting and economic policy. Therefore, such a decision will clearly have unforeseen repercussions beyond the facts and the parties to that case. If the fact that courts are faced with a multiplicity of policy options with unpredictable outcomes is not cited as an insurmountable obstacle to courts deciding on non-socio-economic constitutional rights and principles, it should not be in the context of dealing with socio-economic rights. More broadly, this book is concerned with children’s constitutional socio-economic rights and, as De Londras has noted, constitutional adjudication by its very nature has repercussions beyond the parties because it constitutes the concretisation, identification and application of constitutional principles. Given the existence of the principle of constitutional supremacy, constitutional principles are binding on the state in general, not merely in the context of the order made in a particular case. Therefore, polycentricity arguably cannot be avoided in such adjudication, regardless of the right or question at issue.50 Furthermore, ‘[t]he mere fact of far-reaching or unforeseen consequences should not imply total abdication by the judiciary of its primary responsibility of upholding the norms and values of the Constitution’.51 In the words of the South African High Court in Rail Commuter Action Group and others v Transnet Ltd and others:52 The problems of polycentricity must clearly act as important constraints upon the adjudication process, particularly when the dispute has distributional consequences. But polycentricity cannot be elevated to a jurisprudential mantra, the articulation of which serves, without further analysis, to render courts impotent to enforce legal duties which have unpredictable consequences.53

repercussions or of their legal irrelevance. As a result, the adjudicative court will be left with a nagging sense that any dispute might have ramifications which it is incompetent to determine in reaching a decision. This uncertainty will threaten the adequacy of the adjudication (ibid 372–73). 50

In conversation with Fiona De Londras, 26 November 2010. S Liebenberg, ‘Socio-Economic Rights’ in M Chaskalson et al (eds), Constitutional Law of South Africa (Cape Town, Juta, 1996) paras 41-1, 41-11. 52 Case 10968/2001, 6 February 2003. 53 Rail Commuters Action Group and others v Transnet Ltd t/a Metrorail and others, 2005 (2) SA 359 (CC) 2003 (3) BCLR 288 (CC) 147. 51

204 The Issue of Efficacy Thus, as Pieterse notes, although the polycentricity of a dispute certainly mandates judicial caution and awareness of the social consequences of judgments, it cannot preclude judicial involvement in social rights matters altogether.54 Fuller himself recognised that, due to the inadequacy of other forms of ‘social ordering’, there would occasionally be a need for adjudication involving polycentric issues.55 Writing about American institutional litigation, Fletcher has argued that the ability of the courts to ‘force’ state political entities to resolve their own non-legal polycentric problems in institutional suits is dependent on the courts ultimately having the legitimate power in exceptional circumstances to remedy such problems themselves.56 Liebenberg suggests how polycentricity considerations may operate in the context of constitutional adjudication, highlighting that ‘the fact that there is a wide range of policy options for giving effect to a particular right suggests that a broader margin of discretion should be accorded to the legislature. It also suggests a measure of remedial flexibility which affords the legislature an opportunity to fashion an appropriate scheme falling within the bounds of constitutionality’ (footnotes omitted).57 This point will be explored further below.

Socio-economic Rights and ‘Limited’ Judicial Remedies When it comes to formulating orders to address children’s socio-economic rights violations, courts are arguably spoilt for choice.58 Indeed, remedies that have been made by courts in decisions involving children’s socio-eco-

54 M Pieterse, ‘Coming to Terms with Judicial Enforcement of Socio-Economic Rights’ (2004) 20 South African Journal on Human Rights 383, 394. Indeed, more generally, Scott and Alston have observed that ‘[c]onstitutional rights adjudication involves choice as to the degree and nature of the involvement of a court—and, within that choice, an assessment of whether the court can be more constructive by being assertive or by being more circumspect— and is generally not profitably approached as some stark choice as to whether to get involved or not’ (P Alston and C Scott, ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise’ (2000) 16 South African Journal on Human Rights 206, 216). 55 Fuller, above n 39, 405–9. 56 W Fletcher, ‘The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy’ (1982) 91 Yale Law Journal 635, 696–97. He argues that such judicial activity will be justified where there exists no practical alternative for the protection of the constitutional right at stake in a particular case, when the state’s political entities are in serious and chronic default. 57 Liebenberg, above n 51, 41–11. For further suggestions of how courts should deal with polycentric cases, see Pieterse, above n 54, 412. 58 For a discussion of the issues surrounding the formulation of remedies in socioeconomic rights cases, see K Roach, ‘The Challenges of Crafting Remedies for Violations of Socio-economic Rights’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (New York, Cambridge University Press, 2008) 46.

A Case of Institutional Incapacity? 205 nomic rights include damages, declaratory orders,59 mandatory orders, the exercise of supervisory jurisdiction and ‘reading in’.60 When considering the ability of courts to formulate appropriate remedies, it is important at the outset to differentiate between two very different issues. The first is the question of whether the courts are empowered to deal effectively with children’s socio-economic rights in remedial terms. The second is whether they are willing to do so. For instance, in the previous chapter, I highlighted that, in TD v Minister for Education, a majority of the Irish Supreme Court refused to grant a mandatory order requiring the state to perform specific activities necessary to give effect to an unenumerated socio-economic right of the child. However, they did not base their decision on inherent judicial incapacity to grant such an order; in fact, the judgment makes it clear that in some extreme circumstances the courts could grant a mandatory order.61 This, as well as the alternative approaches adopted in other jurisdictions, makes it clear that the courts are institutionally capable of formulating complex positive orders in the context of children’s socio-economic rights cases. Indeed, complex mandatory orders including an element of supervisory jurisdiction have been issued or contemplated by the highest courts in cases directly or indirectly involving children’s socio-economic rights in jurisdictions including the United States,62 Canada,63 59 See, eg the Irish Supreme Court decision in TD v Minister for Education [2001] IESC 86, discussed in Chapter 4. 60 The South African Constitutional Court’s decision in Khosa and others v Minister of Social Development and others 2004 (6) BCLR 569 (CC) involved, amongst other things, a finding of a violation of the child’s right to social services under s 28(1)(c) CRSA. Here, the applicants challenged legislative provisions which limited entitlement to social grants for the aged to South African citizens, and would prevent children of non-South African citizens in the same position as the applicants from claiming any of the childcare grants available to South African children (regardless of the citizenship-status of the children themselves). The Court ordered that the relevant legislative provisions be read as though the words ‘or permanent resident’ appeared after ‘citizen’. (Facts taken from an ESCR-Net Case-Law Database casenote that was written by this author.) 61 For more on the Irish Supreme Court’s stance on mandatory orders, see Chapter 4. 62 For example, see the celebrated US school desegregation cases of Brown et al v Board of Education of Topeka et al, 347 US 483 (1954) (‘Brown I’) and Brown et al v Board of Education of Topeka et al, 349 US 294 (1955) (‘Brown II’). In Brown II, the US Supreme Court granted a structural injunction. The Court remanded the cases to the district courts to ‘take such proceedings and enter such orders and decrees … as are necessary and proper to admit to public schools on a racially non-discriminatory basis with all deliberate speed the parties to these cases’ (at 301). The Supreme Court specified that the lower courts were to retain jurisdiction of these cases during the period of transition to a racially non-discriminatory school system. Such remedies have also been furnished in a large number of the US state constitutional education rights cases. See, eg the Campaign for Fiscal Equity litigation in New York State. In this case, the state failed to meet the deadline set by the New York Court of Appeals to reform the education system in such a way as to ensure that schools had the resources to provide the opportunity for a ‘sound basic education’ in terms of the state constitution (Campaign for Fiscal Equity, Inc v State of New York, (2003) 100 NY2d 893). This resulted in the New York Supreme Court judge who originally heard the case appointing an expert panel to submit a compliance plan to the Court. The precise terms of this plan (including the minimum funding figure determined by the panel) were ultimately successfully challenged by the state before the Court of Appeals (Campaign for Fiscal Equity, Inc v State of New York, (2006) 29 AD3d 175). 63 See, eg Doucet-Boudreau v Nova Scotia [2003] 3 SCR 3, discussed in Chapter 4, where the Supreme Court of Canada held that a trial judge could, after ordering that a government

206 The Issue of Efficacy India,64 Colombia65 and South Africa.66 The mixed experiences arising from the granting of such orders in different cases in terms of bringing about the realisation of children’s rights in practice suggest, however, that simply because a court grants such an order, this does not mean that the courts will do so competently or that such an order will be effective in terms of bringing about the enforcement of children’s socio-economic rights.67 Indeed, whether or not an order will be implemented, or will actually result in rights being realized, will provide programmes and facilities for minority language students, retain jurisdiction over the case and require the government to report back through affidavits on its progress in complying with the order. 64 See, eg Mehta, above n 37, where, in response to evidence of widespread violations of statutory prohibitions on child labour, the Supreme Court of India granted a number of comprehensive, detailed mandatory injunctions and structural injunctions. Amongst other things, the Court required the Secretary of the Ministry for Labour to report back to the Court. 65 See, eg the Constitutional Court of Colombia’s decision in Tutela Judgment, T-025/04, discussed below. 66 See, eg The Centre for Child Law v MEC for Education, Gauteng 2008 (1) SA 223T. Here the Gauteng High Court was asked to address the poor physical conditions, the lack of access control and the absence of proper psychological support and therapeutic services at a school of industry in that province. Finding violations of a range of children’s constitutional rights, including socio-economic rights set out in s 28(1)(c) CRSA, the court granted an initial order requiring the defendant immediately to provide sleeping bags to keep the children relatively warm at night. Two days later, the court ordered further that the school be subject to a developmental quality assurance process and that the team carrying out that process must provide a report on their finding and recommendations to the court. The court required the defendants to provide a plan to implement the team’s recommendations and to indicate the timescale for implementation within a week of the team presenting its report to the court. This case is discussed further in Chapter 6. 67 There has thus far been no general study focussing on the efficacy of complex mandatory supervisory orders in children’s socio-economic rights decisions in terms of achieving the realisation of the achievement of those rights. However, the following observations in relation to the cases mentioned in notes 62–66 provide a sense of the potential for very mixed success in this context. The degree to which Brown achieved its aims of ensuring the right to integrated education in the US has been the subject of extensive debate. (See, eg J Patterson, Brown v Board of Education: A Civil Rights Milestone and Its Troubled Legacy (New York, Oxford University Press, 2001). In Doucet-Boudreau, the Supreme Court of Canada recognized that the appeal before it was moot: ‘The desired effect has been achieved: the schools at issue have been built. Restoring the validity of the trial judge’s order would have no practical effect for the litigants in this case and no further reporting sessions are necessary’ (Doucet-Boudreau above n 63, para 17). Here, the socio-economic rights at issue had already been satisfied. With regard to Mehta, the orders as conceived by the Court have been criticised as insufficient to tackle the problem of child labour. (R Aggarwal, ‘The Barefoot Lawyers: Prosecuting Child Labour in the Supreme Court of India’ (2004) 20(2) Arizona Journal of International & Comparative Law 663). Ultimately, ‘the decision has had little effect on either curbing child labour’ or in persuading the state to implement anti-child labour legislation effectively (ibid 709). The implementation of the T-025/04 decision is ongoing and will be discussed further below. Notably, the year following the ruling, the Court concluded that, in spite of the efforts made and some progress accomplished, the unconstitutional state of affairs had not been overcome. In doing so, it noted that agencies responsible for assisting the displaced had to work faster and more consistently towards the solution of the unconstitutional state of affairs within a reasonable timeframe. (Source: http://www.escr-net.org/caselaw/caselaw_show.htm?doc_id =423299&country=13508). I have been unable to locate information on the impact of the Centre for Child Law, above n 66, decision.

The Challenge of Implementation 207 depend on a wide range of political, legal, cultural, circumstantial and other factors, some of which are addressed below. THE CHALLENGE OF IMPLEMENTATION

Given that courts prima facie lack implementation powers,68 it might be argued that they are not equipped to deal effectively with socio-economic rights due to their inability to perform, or ensure the performance of, the tasks necessary to give effect to the complicated remedies granted in the context of socio-economic rights violations. This will particularly be the case where courts set out steps in the form of a mandatory order that the state must take in order to give effect to the positive obligations imposed by such rights. Indeed, the principal problem faced by courts in ensuring the implementation of socio-economic rights remedies, and particularly detailed mandatory orders, is that it is political bodies, rather than the courts, that need to take action to give effect to the orders.69 The courts do not have the personnel or infrastructure to take on the task of ensuring implementation themselves, particularly when considered in relation to the resources of the other branches.70 In practice, there is evidence that factors such as the size of the case and the complexity of the remedies ordered are variables affecting the level of difficulty in judgment implementation.71 This is borne out by research on the Argentinean experience of socioeconomic rights adjudication. Sigal et al have found that, while ‘individual’ cases in which one claimant seeks a specific, individualised remedy, have generally enjoyed a very high level of implementation, this is less true of ‘medium collective’ cases which entail a change in public policy for a relatively small, identifiable pool of applicants and with relatively limited implications for public funds.72 Orders granted in such cases generally require the state to adopt a relatively easily identifiable course of conduct

68

See, eg Rosenberg, above n 8, 15–21. For more on the dependence of the practical success of judicial orders on political will and the impact that the desire to prove efficacious may have on judges in terms of their formulation of orders and treatment of rights, see O Fiss, ‘The Supreme Court 1978 Term, Foreword: The Forms of Justice’ (1979) 93 Harvard Law Review 1, 53–55. 70 I note that the court’s inability to ensure (in the sense of ‘perform’) implementation of an order is not merely an issue when dealing with mandatory orders. Where the court hands down a declaratory or prohibitory order, it is no more capable of ensuring that an order is given effect to itself than it is in relation to orders requiring the performance of specific positive acts. 71 M Sigal, D Morales and J Rossi, ‘Preliminary Considerations on the Implementation of Courts’ Decisions Concerning Social Rights in Argentina’, paper presented at symposium on Enforcement of ESCR Judgments, Bogotá, Colombia, 6–7 May 2010. 72 Ibid. 69

208 The Issue of Efficacy that is limited in time, measurable, and involves relatively few state actors.73 However, while these decisions enjoyed an ‘adequate’ to ‘high’ level of implementation, this has not been of the case for ‘structural cases’,74 which involve a larger number of persons and public resources, affecting fartherreaching public policy, and encompassing a larger number of state actors.75 In particular, where judgments involve obligations whose satisfaction requires more complex action, there is a low level of implementation.76 So how can courts deal with issues that arise in relation to judgment implementation? First, it is possible to structure an order so as to delegate the monitoring function to an appropriate body that may report back to court. Alternatively, where a superior court is concerned that it is too busy or is not in a position to perform a monitoring function, it might delegate that function to the court that heard the case at first instance. There is also, frequently, the possibility of an action for contempt where states do not comply. It has been argued, originally in an American context, that courts may develop structures of decree enforcement which allow for the participation of parties.77 Such remedial structures have been employed by a range of actors in children’s socio-economic rights cases. For instance, in its decision in T-025/04, the Colombian Constitutional Court formally declared the existence of ‘an unconstitutional state of affairs’ with regard to the living conditions of the internally displaced population, who the Court found to have suffered severe, repeated and ongoing violations of a wide range of rights, including children’s constitutional socio-economic rights.78 The Court required a range of state actors with responsibility for internally displaced persons to take a variety of steps within set time limits to address the state of affairs. According to Rodríguez Garavito, the six-year implementation process of this decision has included 84 follow-up decisions and 15 public hearings, as well as the participation of myriad governmental agencies and NGOs whose standing in the case the Court has recognised.79 73

Ibid. Enforcement of ESR Rights Judgments: Analytical Report, above n 2, 9. 75 Sigal, Morales and Rossi, above n 71. 76 Enforcement of ESR Rights Judgments: Analytical Report, above n 2, 9. 77 See, eg R Goldstein, ‘A Swann Song for Remedies: Equitable Relief in the Burger Court’ (1978) 13 Harvard Civil Rights-Civil Liberties Review 1, 77. 78 The Court made this finding due, on the one hand, to the lack of correspondence between the severity of the effect of the conditions experienced by IDP (internally displaced people) on rights that were constitutionally recognised and developed by law, and, on the other, the level of resources actually allocated to ensure effective enjoyment of those rights, as well as the institutional capacity to implement the constitutional and legal mandates imposed by such. According to the Court, this unconstitutional state of affairs was confirmed by, amongst other things, the facts that the ongoing rights violations were not attributable to one sole entity and were caused by structural factors. 79 Rodríguez Gravito, above n 6. For more on the implementation of this decision, including in relation to children’s rights specifically, see C Rodríguez Gravito and D Rodríguez 74

The Challenge of Implementation 209 Such a remedial model not only enables dialogue between parties but also facilitates a more dialogic relationship model between the courts and elected branches of government in the context of judicial review. This is consistent with a perception of judicial review as a key element of societal dialogue about constitutional content and meaning, rather than simply an adversarial dispute over such between the courts and the other branches of government.80 Liebenberg highlights that structural orders ‘enable complex problems involving multiple actors, institutions and processes to be addressed through an incremental process of mutual dialogue and experimental learning’.81 Indeed, such a model arguably also lends itself towards achieving a greater level of state compliance in cases involving polycentric issues. In their analysis of socio-economic rights adjudication in a variety of different jurisdictions, Brinks and Gauri found that ‘when tackling complex and extensive issues, the most effective judicial interventions tend to fall on the dialogical end of the spectrum’.82 Dialogue between parties to a case may be equally important in terms of ensuring implementation. In South Africa, there has been increasing use on the part of the courts of what might be termed ‘court-mandated mediation’, under which the applicants and the defendant state entities are required by the court to engage in mediation prior to the finalisation of the court order.83 While such engagement may result in a settlement that meets the key desires of both sets of parties,84 the risk inherent in the flexibility of engagement is that the state may not, in fact, ‘meaningfully’ engage.

Franco, Cortes y Cambio Social: Cómo la Corte Constitucional Transformó el Desplazamiento Forzado en Colombia (Bogotá, Centro de Estudios de Derecho, Justicia y Sociedad, Dejusticia, 2010). 80 See, eg Friedman who has argued that, ‘the process of constitutional interpretation that actually occurs does not set electorally accountable (and thus legitimate) government against unaccountable (and thus illegitimate) courts. Rather, the everyday process of constitutional interpretation integrates all three branches of government: executive, legislative, and judicial’ (B Friedman, ‘Dialogue and Judicial Review’ (1993) 91 Michigan Law Review 577, 580). There is a large and growing literature on the issue of the notion of ‘dialogue’ between courts and the legislature in the context of constitutional norms. For a useful overview of the key issues arising in this area, see R Dixon, ‘Creating Dialogue about Socioeconomic Rights: Strong-form Versus Weak-form Judicial Review Revisited’ (2007) 5 International Journal of Constitutional Law 391. 81 S Liebenberg, Socio-Economic Rights: Adjudication under a Transformative Constitution (Cape Town, Juta, 2010) 436. 82 Brinks and Gauri, above n 2, 323. 83 See, eg, Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg and others 2008 (3) SA 208 (CC); 2008 (5) BCLR 475 (CC) (‘Olivia Road’); Joe Slovo Community and others v Thubelisha Homes and others [2009] ZACC 16. 84 See, eg the experience in Olivia Road discussed in B Ray, ‘Occupiers of 51 Olivia Road v City of Johannesburg: Enforcing the Right to Adequate Housing Through “Engagement”’ (2008) 8(4) Human Rights Law Review 703.

210 The Issue of Efficacy Ultimately, this will reduce the ability of such engagement to result in the effective protection of socio-economic rights.85 But why don’t judgments get implemented? There a number of reasons that serve to explain state failure to comply where a court sets out steps that the state must take in order to fulfil its positive constitutional children’s socio-economic rights obligations.86 These can be denoted as incompetence, ignorance, oversight and intransigence. By ‘incompetence’, I mean any infrastructural or administrative problem that prevents a government agency from complying with an order handed down by a court or a failure to put in place the administrative structures required to do so. Governmental ‘ignorance’ means a lack of knowledge on the part of the state as to what the court’s order requires. ‘Oversight’ arises where, due to indifference, the government has failed to give effect to an order or where the government has overlooked a necessary element for implementation of the order. Governmental ‘intransigence’ involves a refusal to give effect to an order despite both the state understanding what is involved and its having the capacity to do so. The court has tools available to it that may reduce the risk of nonimplementation of orders due to ignorance or oversight. First of all, careful phrasing and the inclusion of a good level of detail in an order may reduce the likelihood of non-implementation due to ignorance or oversight. This will be particularly important where the state has failed to give effect to a previous, more general order. The stance adopted by a judge here will be crucial; Sigal et al have argued in the context of structural collective cases in Argentina that the judge’s willingness and capability to wield the necessary authority to generate involvement and commitment on the part of the parties in a genuine solution-searching process is key to the likelihood of effective implementation.87 Introducing a reporting requirement, under which the state must report back to the court or another party on what it has done to give effect to the court’s decision, allows for the possibility of ongoing dialogue between the court and the state, albeit with the ultimate understanding that it is the courts, rather than the legislature, that has the final say.88 On the one hand, such a remedial approach enables the state 85 For a discussion of how such a risk has operated in the South African context, see B Ray, ‘Residents of Joe Slovo Community v Thubelisha Homes and Others: The Two Faces of Engagement’ (2010) 10(2) Human Rights Law Review 360. 86 This framework for non-compliance is strongly influenced by the reasons highlighted by Chris Hansen for governmental non-compliance with constitutional standards, cited in K Roach and G Budlender, ‘Mandatory Relief and Supervisory Jurisdiction: When is it Appropriate, Just and Equitable?’ (2005) 22 South African Law Journal 325, 345. 87 Sigal, Morales and Rossi, above n 71. 88 This contrasts with the ‘legislature supremacy’ systems envisaged by the UK Human Rights Act 1998 or s 33 of the Canadian Charter, for instance. (For more, see S Gardbaum, ‘The New Commonwealth Model of Constituionalism’ (2001) 49 American Journal of Comparative Law 707).

The Challenge of Implementation 211 to highlight to the court issues and challenges arising in relation to the formulation of directions (or of previous directions) and to make suggestions to the court in relation to solving such. This will include the state highlighting to courts what implications different approaches will have in relation to the state’s operations and its satisfaction of its rights obligations generally. On the other, it enables the court to amend, clarify or justify elements of its order to the state. Reporting (either to the court, on the public record, or to another body such as the public or a national Human Rights Commission) and the risk of being taken to task before the courts again on a later date, will serve to focus the state on what is required and will exert pressure on the state to ensure that they take real, effective action to implement the order. Particularly serious problems arise in relation to non-implementation of orders due to governmental incompetence or intransigence. It has been argued that a sufficiently precise and far-reaching order can help to remedy non-implementation that is attributable to incompetence in either of these cases. Roach and Budlender assert that the greater the degree of the government’s incompetence, the stronger the case for supervisory jurisdiction, including requirements that the government submit a plan and progress reports for the court’s approval.89 However, ultimately, where a state agency is experiencing a budgetary or competence crisis, it seems unlikely that anything short of the courts’ taking steps to address the systemic problem faced by the relevant agency will succeed in guaranteeing implementation and, even then, implementation may not be achieved.90 Ultimately, if the court is faced with a rights-delivery system that is ‘broken’, it seems unlikely that even the most broad-ranging and micro-managing of judicial remedies will be able to fix it, even leaving aside the ‘legitimacy’ issues that the courts adopting such a role would raise. But what of non-implementation attributable to governmental intransigence? Where a government is unwilling to give effect to a court order, the only tool available to the court may be the threat of holding a state agent in contempt. Indeed, there is evidence from at least one jurisdiction that compliance is incentivised by the frequent use of fines and contempt of court threats, including prison orders.91 However, there are several significant problems with the contempt sanction, which are likely to make the court extremely reluctant to use it. The most important of these is that, 89

Roach and Budlender, above n 86, 349. See, eg the experience of judicially-drive and managed prison reform in the United States outlined in M Feeley and E Rubin, Judicial Policymaking and the Modern State: How the Courts Reformed America’s Prisons (New York, Cambridge University Press, 1998). 91 Ferraz has made this point in the context of right to health litigation in Brazil (O Ferraz, ‘Right to Health Litigation in Brazil: An Overview of the Research’, paper presented at a workshop on Rights to Health Through Litigation: Can Court Enforced Health Rights Improve Health Policy?, University Torquata di Tella, Buenos Aires, 15–17 April 2009, 20, 26). 90

212 The Issue of Efficacy where the court cites a government department/ministry or one of its agents for contempt, this may set up a battle between the branches of government that will effectively destroy any chance of government cooperation.92 Considering the understandable reluctance of the courts to use such a power against the government in constitutional cases, one can only assume that their reluctance will be heightened in a case involving socio-economic rights, in light of judicial concerns and awareness of the case’s implications for, inter alia, the separation of powers doctrine. The risks of non-implementation of, or non-compliance with, court orders are likely to be reduced where litigants have factored in the ‘costs of compliance’ when seeking a particular remedy. It is thus crucial that child socio-economic rights litigants demonstrate an awareness of the contexts in which courts work and the factors that will ultimately impact upon the implementation of their orders (including the broad range of actors who play a role in relation to realising or violating rights and the different (and often non-legal) ways in which they can be held to account).93 Indeed, in order to improve the likelihood of the effective implementation of a decision, it is advisable for applicants to factor in compliance strategies even before the judicial litigation process starts.94 ENSURING ENFORCEMENT: OTHER KEY FACTORS

Having established that the courts are not incapable of ensuring the effective enforcement of children’s rights, it is useful to consider a number of discrete elements that operate to increase or diminish the likelihood that, where the courts seek to give effect to children’s socio-economic rights, their efforts will be efficacious in terms of bringing about the realisation of children’s rights. Naturally, the factors affecting the success or not of judicial efforts to give effect to socio-economic rights will frequently be context- or jurisdiction-specific. Thus, my comments on efficacy will necessarily be general in nature, albeit that they are informed by empirical and theoretical research. 92

See Rosenberg, above n 8, 19–20. In conversation with Fiona De Londras, 26 November 2010. 94 See, eg Brinks, who argues that ‘the resources available for enforcement should be considered [by applicants] in deciding how costly a remedy to ask for’ (D Brinks, ‘Solving the Problem of (Non) Compliance in SE Rights Litigation’, paper presented at symposium on Enforcement of ESCR Judgments, Bogotá, Colombia, 6–7 May 2010). Brinks identifies the cost of compliance as having at least three dimensions: financial, political and ‘affective’, the latter of which he describes as ‘the distance between the objective of the litigation and the proclaimed goals and values of the target organisation in question’ (ibid). In contrast, Porter raises a concern about applicants overemphasising enforcement options in relation to the goals of social rights claims, arguing that while this may result in effective enforcement, fundamental rights violations may go unchallenged (B Porter, ‘In Defence of “Soft” Remedies (Sometimes) Enforcing Principled Remedies in Systemic Social Rights Claims in Canada’, paper presented at symposium on Enforcement of ESCR Judgments, Bogotá, Colombia, 6–7 May 2010). 93

Ensuring Enforcement: Other Key Factors 213 The Role of Social Movements The efficacy of the court’s approach will undoubtedly be strengthened where the litigation that is the basis of the court’s ruling forms part of a broader social movement or campaign.95 In a children’s socio-economic rights context, this is demonstrated by the TAC case. The group primarily responsible for bringing the constitutional case,96 the Treatment Action Campaign, was a broad-based social movement, enjoying massive public support.97 Indeed, the attorney for the applicants stated that ‘[i]n some ways, the final judgment of the Constitutional Court was simply the conclusion of a battle that the TAC had already won outside the courts, but with the skilful use of the courts as part of a broader struggle’.98 Prior to taking the case, TAC engaged in a massive public mobilisation, attracting enormous support and media interest.99 Ultimately, the efficacy of the court’s activity was greatly enhanced by TAC’s post-ruling monitoring of the state’s implementation of the court’s order, a fact that is evidenced by post-judgment developments. The weekend after the judgment was granted, the Health Minister, Manto Tshabalala-Msimang, said at the International AIDS Conference in Barcelona: ‘We have a judicial system in SA that places the Constitutional Court in a particular position; once [it] has articulated its sentence, we have to obey it because we are people who live by the rule of law’.100 On 7 July, however, she was reported as having said, ‘We will implement because we are forced to implement … [t]he High Court has decided the Constitution says I must give my people a drug that isn’t approved by the FDA. I must poison my people’.101 Although the Minster later denied having made these comments, it set the tone for the government’s attitude towards implementation of the order.

95 For more, see Enforcement of ESR Rights Judgments: Analytical Report, above n 2, 6–7. For a series of useful discussions on the relationship between lawyers and social movements (including their impact(s) on each other) in the context of advocacy seeking to advance particular political and social causes, including the realisation of rights, see A Sarat and S Scheingold (eds), Cause Lawyers and Social Movements (Stanford, CA, Stanford Law and Press, 2006). 96 The constitutional claim was lodged by the Treatment Action Campaign (TAC), Save Our Babies and the Children’s Resource Centre. 97 Members of the TAC are from diverse political backgrounds and the movement is not aligned to any political party. TAC has strong links with more than 170 local and international organisations, including the Congress of South African Trade Unions and Médécins sans Frontières (see ‘Social movements: “ultra-left” or “global citizens”’, Mail & Guardian, 4 February 2003). For an account of TAC as a social movement, see S Friedman and S Mottiar, A Moral to the Tale: The Treatment Action Campaign and the Politics of HIV/AIDS (Kwazulu-Natal, Centre for Policy Studies, 2004). 98 G Budlender, ‘A paper dog with real teeth’, Mail & Guardian, 12 July 2002. 99 M Heywood, ‘Preventing Mother to Child Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case Against the Minister of Health’ (2003) 19 South African Journal on Human Rights 278, 300. 100 ‘State to obey antiretroviral ruling’, Business Day, 8 July 2002. 101 Interview in Newsday, 7 July 2002.

214 The Issue of Efficacy Four days after the judgment, a letter was sent by TAC to the nine provinces and the Ministry of Health requesting information on what steps would be taken and when. According to Mark Heywood, it quickly became clear that the judgment had been misconstrued as simply a negative injunction to remove the restrictions on the availability of NVP; the positive dimensions of the order, such as permitting and facilitating the use of NVP and the taking of reasonable measures to extend access to it, appeared to have been misunderstood.102 In October 2002, the Director-General of the Department of Health provided information setting out what the nine provinces had done since the order. Heywood notes that: [t]he TAC found that generally in provinces where there was already a commitment to establishing a comprehensive PMTCT programme (Gauteng, Western Cape, KwaZulu-Natal, North West Province), the judgment unshackled health departments and politicians and opened the door to implementation. In these provinces there has been an ongoing expansion and improvement. By contrast, other provinces have required active engagement.103

In one province, the Eastern Cape, the failure to implement the Court’s order was attributable to the chaotic state of provincial government. However, in at least one province, Mpumalanga, non-implementation was arguably motivated by bad faith and opposition to the Court’s decision on the part of the Member of the Executive Council (MEC) for Health in that province. In December 2002, after consistent failure by the MEC for Health in Mpumalanga to comply with the order, a complaint and a request for an investigation was filed with the South African Human Rights Commission, along with evidence of non-compliance. Two weeks later, TAC launched contempt proceedings against the Minister of Health and the MEC. It was accepted that getting a court order would be very difficult. However, TAC’s aim was to use the contempt proceedings as a means of placing pressure on the provincial government to comply.104 Certainly, the contempt proceedings appeared to have the desired effect. While initially it was extremely difficult to get information from several provinces, once proceedings were initiated against Mpumlanga, there was a new willingness on the part of other provinces to furnish TAC with information on implementation. This was particularly evident on the part of Northern Cape officials who, prior to the contempt action, had been recalcitrant in relation to providing information on implementation and, after the initiation of the contempt proceedings, became far more forthcoming. Mpumalanga’s reply to the application indicated that they had been in breach

102 M Heywood, ‘Contempt or Compliance? The TAC Case After the Constitutional Court Judgment’ (2003) 3(1) ESR Review 7, 9. 103 Ibid. 104 Interview with Geoff Budlender, Legal Resources Centre, in Cape Town, 5 March 2003.

Ensuring Enforcement: Other Key Factors 215 of the court order but that, by the time of their reply, they had largely complied with the order.105 The proceedings were thus allowed to drop. By March 2003, it was possible to say that compliance was fairly large-scale: [b]oth government and TAC now say that we have the largest MTCT prevention programme in the world. That’s partly because of the scale on which we have to do it because of the scale of the disease here. But compliance has been two-thirds satisfactory—not bad.106

This example serves to demonstrate that the efficacy of judicial efforts to enforce children’s socio-economic rights can be greater where there is a constituency or civil society movement prepared to take action on behalf of children, initially by bringing an action before the courts and, subsequently, by ensuring that the order is given effect to by the state. The importance of an accompanying social movement was also demonstrated in the Indian PUCL litigation. The People’s Union of Civil Liberties is a high-profile civil rights organisation which, in response to widespread starvation deaths in Rajasthan despite excess grain stocks, petitioned the Supreme Court to make a number of orders to give effect to the right to food as a component of the constitutional right to life.107 An interim order granted required state governments to introduce cooked mid-day meals in all government and government-assisted primary schools within six months.108 Together with an organised public campaign, this and subsequent court orders109 led to all state governments initiating mid-day meal programmes, resulting in more than 100 million children being covered.

The Role of ‘Popular Legitimacy’ Implementation of a decision will also be facilitated where that decision is popularly legitimate; that is, where a particular decision conforms with public opinion on an issue, which I take to be indicative of public policy preferences vis-à-vis that issue. Admittedly, identifying the existence or strength of ‘public opinion’ regarding a specific ruling is problematic; for example, there may be no direct evidence such as a comprehensive opinion poll on the matter in question. Where such evidence is unavailable, public opinion must be inferred from indirect evidence such as public discussion and media debate surrounding a particular case or judicial decision. Evidence 105

Interview with Geoff Budlender, Legal Resources Centre, in Cape Town, 21 December 2005. Interview with Geoff Budlender, Legal Resources Centre, in Cape Town, 5 March 2003. 107 Constitution of India, art 21. 108 PUCL v India, Writ Petition (Civil) No 196 of 2001, interim order of 28 November 2001. 109 See ‘Legal action: interim orders in the “Right to Food” case’, www.righttofoodindia. org/orders/interimorders.html#box17. 106

216 The Issue of Efficacy of popular opinion may also be gleaned from judgments themselves where the courts refer to or address such opinion when outlining the reasoning for their ultimate decision. One might be tempted to suggest that the general recognition of children’s vulnerability and their particular need for protection suggests that judicial activity that seeks to progress children’s rights is likely to conform to public policy preferences and will be, to some degree, popularly legitimate. This will be particularly true in cases in which a court’s enforcement of children’s rights does not clash with any other adult policy preferences. On the other hand, where socio-economic rights are violated, there is a tendency on the part of observers to blame nameless economic or ‘developmental’ forces or the simple inevitability of human deprivation, before placing liability at the doorstep of the state.110 Where the public does not perceive the state as responsible or liable for the non-vindication of socio-economic rights, public opinion may be opposed to the courts’ holding it to be so. As highlighted in Chapter 2, it cannot be assumed that adult society generally will be concerned with the enforcement of children’s socio-economic rights, particularly those of ‘unpopular’ groups of children. This would appear to operate against (or at least temper) a presumption that the judicial enforcement of children’s socio-economic rights by the courts will be popularly legitimate. In outlining a model for the role of constitutional courts in democracies, Epstein, Knight and Shvetsova have argued that, after a court makes a decision resulting in a particular policy position, the elected government actors (for example, the executive and the legislature) must decide whether to modify, override, evade or otherwise disregard the court’s decision, or harm the court in some other way.111 Such an attack would clearly include non-compliance with or non-implementation of a court decision. It is assumed that these sorts of ‘attacks’ may have short- and long-term effects on the court. In the short term, they may nullify specific decisions or render them inefficacious.112 In the longer term, they may chip away at the court’s

110 S Leckie, ‘Another Step Towards Indivisibility: Identifying the Key Features of the Economic, Social and Cultural Rights’ (1998) 20 Human Rights Quarterly 1, 82. This is in contrast to situations in which civil or political rights are violated, where ‘observers almost unconsciously hold the state responsible’ (ibid). 111 L Epstein, J Knight and O Shvetsova, ‘The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government’ (2001) 35 Law and Society Review 117, 128. Epstein et al’s observations and arguments are primarily made in relation to constitutional courts. In this book, I focus primarily on the enforcement of children’s socio-economic rights by the highest national courts in different jurisdictions. There is no reason to assume, however, that Epstein et al’s comments are not at least partially applicable to the interaction between the elected branches of government and courts at any level dealing with policy issues. 112 Ibid 128 and 131.

Ensuring Enforcement: Other Key Factors 217 legitimacy;113 that is, their impact may accumulate over time such that the court itself becomes an ineffective political institution.114 Epstein et al point out that, because elected actors may incur costs associated with challenging a decision produced by the courts, they may be unwilling to challenge a court decision involving policy issues that fall within their ‘tolerance interval’.115 In making an ex ante assessment of the relative costs and benefits of attempting an ‘attack’ on the courts, the elected actors take into account four factors: (1) case salience: the degree to which the case under consideration by the court is particularly relevant or important to them; (2) case authoritativeness: the ability of the judges to produce a clear, consensual ruling in the general legal area at issue in the dispute; (3) public (specific) policy preferences: the position of the public, in a policy space, in relation to a specific matter under review; and (4) public (diffuse) support for the court.116 While all of these factors should be taken into account when considering the likelihood of the enforcement of the type of decisions considered in this monograph, the third one is of particular relevance to a consideration of the role of popular legitimacy as a factor in assuring or impeding implementation of decisions in which courts enforce children’s socio-economic rights. According to Epstein et al, the closer the court’s policy is to the public’s preferences, the longer the tolerance interval of the elected branches will be.117 Thus, where judicial enforcement of children’s socio-economic rights results in a policy that accords with the preferences of a majority of the public, it seems much less likely that it will be modified, overridden, disregarded or evaded. Indeed, public pressure may serve as an impetus for speedy state compliance. Epstein et al do not go into detail on what the costs incurred by the elected branches of attacking a court decision are. It seems probable, however, that such costs include public anger at the non-implementation of a particular decision, as well as a negative impact on public perceptions of the elected branches due to the perceived ‘illegitimacy’ of the non-implementation of courts’ decisions. These ‘costs’ may be extracted in future elections where officials may be held to account and penalised for an attack. For policies falling within their tolerance level, the actors have calculated that the benefits of acquiescing to the courts’ decision override the cost of an attack; ‘[f]or policies falling outside the interval, they have determined that the benefits of an attack outweigh the costs of acquiescence; and for policies at the extreme ends of the interval, they are indifferent between attacking and not so doing’.118 Thus, if courts wish to ensure that their rulings are

113 114 115 116 117 118

Ibid 128. Ibid. Ibid 128–29. Ibid 129–30. Ibid 130. Ibid 130.

218 The Issue of Efficacy implemented and that they retain their legitimacy, they may avoid dealing with those issues or making decisions that will fall outside the other actors’ tolerance intervals.119 Taken to extremes, such an approach would result in courts solely addressing cases that the elected branches of government would have to deal with (or at least would be predisposed to deal with) due to the pressure of voter opinion.120 More broadly, such self-censorship would also have serious implications for the role of the courts in progressing/protecting constitutional rights and the rule of law in relation to groups, particularly minorities, that do not enjoy public support or attention. Indeed, it has been highlighted that an important factor that may affect likelihood of implementation in a particular case relates to the group whose rights are at issue; when dealing with highly stigmatised groups, for example, there are often low levels of compliance because the group has very few political or societal allies.121 The political costs of implementation here may be a key factor contributing to state reluctance to give effect to a particular ruling involving the rights of such a group of children. Crucially, the ‘costs’ that may be incurred by the elected branches as a result of attacking rulings that involve the court’s enforcing children’s socioeconomic rights may amount to less than those which would be sustained by attacking decisions involving other kinds of judicial behaviour or the rights of other groups; government failure to implement judicial rulings involving children’s rights is less likely to be punished by means of the ballot box than a failure to implement a decision involving the rights of an enfranchised group would be.122 This would seem to bode poorly for legislative or executive willingness to give effect to decisions involving children’s socio-economic rights that fall at the edge of their tolerance levels, thereby highlighting the potential limitations of relying on ‘popular legitimacy’ or ‘public opinion’ as a tool when seeking to ensure the implementation of such decisions. CONCLUSION

I have suggested above that the courts’ supposed ‘incompetence’ in dealing with socio-economic rights issues, as well as their eagerness to do so, are often greatly overestimated. Crucially, however, it is not necessary to agree with everything I have said previously in this chapter in order to

119 In their study, Epstein et al argue that these constraints not only apply to the decisions reached by the courts in particular cases but will also limit the court in terms of what cases it accepts. In this chapter I will only deal with the way in which these constraints may affect the courts’ approach to cases it has already accepted. 120 In conversation with Octavio Ferraz, 19 November 2010. 121 Enforcement of ESR Rights Judgments: Analytical Report, above n 2, 9. 122 For more on the ineffective representation of children’s interests and views in democratic decision-making processes, see Chapter 2.

Conclusion 219 see that the true question is not whether the court is the ideal or optimum forum for ensuring that children’s socio-economic constitutional rights are enforced. Rather, the essential question is: where no one else fulfils this function, will the court do the job so badly that it is better to let the breakdown continue rather than suffer judicial intervention in a desperate last resort?123 In light of the claims I have made above in relation to judicial capacity, and the arguments made earlier in this book about the duty of the courts to ensure that constitutional rights are upheld,124 it seems extremely unlikely that no action should be preferable to judicial action where the constitutional violations at issue are severe, and, in the absence of judicial intervention, are unlikely to be remedied. This will particularly be the case where the rights being violated are those of children, due to the severely limited ability of children to ensure directly or indirectly the vindication of their rights through democratic processes.125 Ultimately, judicial deference to the elected branches of government on the basis of alleged ‘institutional incapacity’ will result in the devaluation of the right at issue. Where a right cannot be enforced, it is arguably robbed of any meaningful power and is reduced to being of merely symbolic value to the right-holder. This chapter has introduced and detailed my understanding of the efficacy of judicial intervention to secure children’s socio-economic rights. As such, I have addressed the issue of judicial capacity in the context of children’s socio-economic rights adjudication, as well as the key question of the implementation of court decisions. In doing so, my analysis has identified a number of factors that impact upon the likelihood that judicial efforts to ensure the vindication of such rights will be effective. Crucially, my concern has not simply been with whether the courts are institutionally capable of adjudicating children’s socio-economic rights; rather, I have considered whether they can do so effectively. The question remains, however, whether such activity can or will be efficacious given the problems with the use of law and of relying on courts as tools to advance children’s socio-economic rights in particular. This challenge is the central focus of Chapter 6.

123 This is an adapted version of a statement made by Cox in relation to judicial intervention in the face of a breakdown by a non-judicial system (A Cox, ‘The Effect of the Search for Equality upon Judicial Institutions’ (1979) Washington University Law Quarterly 795, 804). 124 See Chapter 3. 125 See Chapter 2 on the limited ability of children to ensure the vindication of their rights through democratic processes.

6 Using the Courts to Advance Children’s Socio-economic Rights: Proceed with Caution? INTRODUCTION

B

RINGING LEGAL CHALLENGES is clearly only one tool of many that can be employed to advance children’s rights. Chapters 2 and 3 discussed the obstacles faced by children in relation to ensuring the enforcement of their rights through majoritarian decision-making processes. The question remains, however, whether children will benefit where their rights claims are presented to and mediated by the courts, rather than by the elected branches of government. In light of this, this chapter centres on the issue of the advantages and drawbacks of employing the law and the courts to advance children’s rights. It opens with a consideration of some of the challenges that exist in relation to using law to advance children’s socio-economic rights. Recognising that issues surrounding the effective participation and representation of children are not exclusive to the context of democratic decisionmaking processes, a key element of this chapter is a consideration of the role played by children in relation to socio-economic rights litigation that is ostensibly taken on their behalf; to what extent do their views affect both the inputs and the outputs of socio-economic rights adjudication? Is the litigation and adjudication of children’s socio-economic rights empowering or does it merely reinforce the ‘passivity’ of children as social actors? Looking at another key challenge with regard to using the law to forward children’s socio-economic rights, I briefly discuss the inevitably partial nature of legal solutions in terms of addressing the underlying causes of children’s socio-economic rights violations. I also consider whether, rather than providing an effective solution to the violation of children’s socioeconomic rights, courts themselves constitute part of the problem. The second part of the chapter centres on the risks of relying on judicial decision-making to advance children’s rights, focussing in particular on the constraints that judicial decisions may place on the realisation of these rights. This entails a discussion of the risk that an order granted by a court,

The Drawbacks 221 or the scope of the court-identified obligation that serves the premise of a judicial decision, will serve as a constraint on the state’s law- and policymaking discretion so as to prevent the elected branches of government from adopting the most effective course of action to vindicate children’s rights. The chapter closes with a rebuttal of the frequently-made claim that, in enforcing the socio-economic rights of those children who appear before them, the courts will inevitably negatively impact upon other children’s enjoyment of socio-economic rights. Relying on arguments that are primarily derived from international human rights law standards, it outlines rights-based restrictions faced by the state when seeking to give effect to court decisions involving children’s socio-economic rights. EMPLOYING THE LAW TO BRING ABOUT THE ENFORCEMENT OF CHILDREN’S SOCIO-ECONOMIC RIGHTS: THE DRAWBACKS

It has been argued, specifically in a children’s rights context, that litigation affords the best vehicle to convey law as a means of social change.1 As stated in the previous chapter, this book does not argue that law—or litigation strategy—will necessarily result in social change. There are, however, a number of significant issues that arise with regard to using legal mechanisms and institutions to achieve the more modest aim of the realisation of children’s socio-economic rights. The first factor that will be considered here relates to the litigation process itself, namely the role accorded to children in relation to legal representation and agenda-setting. The second centres on the outcomes of legal processes, namely, the limitations of legal solutions. Finally, I discuss the obstacles that the courts themselves may pose to the efficacy of the judicial enforcement of children’s socio-economic rights. Representation and Agenda-Setting The Committee on the Rights of the Child has noted that, ‘[c]hildren’s special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights’.2 In particular, children suffer from both real and artificially constructed incapacities with regard to participation in 1 E Foley, ‘Why Child Focused NGOs Should Consider Adding Litigation to their Range of Tools’, paper presented at Conference on Convention on the Rights of the Child: From Moral Imperatives to Legal Obligations–In Search of Effective Remedies for Child Rights Violations, Geneva, Switzerland, 12–13 November 2009. 2 General Comment No 5 on General Measures of Implementation of the Convention on the Rights of the Child (arts 4, 42 and 44 para 6), UN Doc CRC/GC/2003/5 (2003) para 24.

222 Proceed With Caution? legal proceedings. First, some younger children will inevitably lack the maturity or be otherwise unable to represent their own interests in the legal process, regardless of any opportunity afforded to do so by the legal system in question. Such children are not capable of determining what legal course of action would best serve/achieve their socio-economic rights or how to bring it about. In addition, children are often excluded from playing a direct role in legal proceedings by the limitations imposed on their ability to sue directly for the enforcement of their rights under different national legal systems.3 Cases involving the assertion of children’s rights will often (where this is possible) be brought by persons such as a ‘next friend’ or a ‘guardian ad litem’ on the children’s behalf, placing children one step further away from the proceedings than a legally empowered adult would be.4 This further ‘remove’ of children from the legal process reduces their ability to control their legal representatives, to set the ‘agenda’ for the litigation, or to ensure that it is directed by their view of what the vindication of their socioeconomic rights should entail. Whether or not these mechanisms come into play generally depends on the age of the child, rather than her actual ability to represent her own rights and interests in a legal context. Thus, in some circumstances, they constitute an artificially constructed incapacity (rather than being reflective of or based on a child’s genuine incompetence). There are certain categories of adult plaintiffs that lack effective control over their legal representatives and the proceedings being taken to allegedly forward their rights. However, this is generally due to a particular characteristic of such adults (for instance, poverty, a suspicion of or lack of confidence in dealing with the legal system, lack of education, disability) rather than to their membership of a particular age-defined group. In litigation, it is generally presumed that all parties, including the instructing guardian and the child’s lawyer, will act in the child’s best interests. However, this is not always the case. Minow observes:

3 Indeed, it is notable that the following litigation-related rights that are found in other non-child-specific Conventions are not expressly included in the Convention on the Rights of the Child (CRC): the right of access to the courts or the right to a remedy for the protection of one’s rights. Children still qualify for such rights due to their status as rights-holders under the International Covenant on Civil and Political Rights, for instance, and the Committee on the Rights of the Child (ComRC) has highlighted that ‘effective remedies must be available to redress violations. This requirement is implicit in the Convention’ (ComRC, General Comment No. 5, above n 2, para 24). For more on this point, as well as details on different jurisdictional approaches to the child initiating litigation to enforce their rights, see D O’Donnell, The Right of Children to be Heard: Children’s Right to Have their Views Taken into Account and to Participate in Legal and Administrative Proceedings, Innocenti Working Paper No 2009-04 (Florence, UNICEF Innocenti Research Centre, 2009) 1–3, 27–28. 4 By a legally empowered adult, I mean one that is not disqualified from directing their own legal representatives due to, for example, mental disability.

The Drawbacks 223 A child’s representative may act either as a mouthpiece for a child, who is capable of expressing a view, or instead as a guardian, who supplies her or his own view of the child’s interest. There are immediate grounds to distrust the adult’s position in either circumstance. The adult who offers the child’s view, unmediated, may advance an irrational or misguided position; the adult who supplies a preference other than the child’s has no obvious tether and lands in the thicket of general uncertainty about what is good for the child. (footnotes omitted)5

Several of the problems that may arise with regard to the representation of children’s rights in the litigation process specifically relate to the initiation of proceedings aimed at forwarding children’s rights. First, a child may not have an appropriate guardian/adult to initiate such a case. Secondly, there is a risk that adults who are in a position to bring a case on a child’s behalf might not feel that it is desirable that children’s rights be vindicated by means of litigation against the state, resulting in them not being prepared to take the requisite action. More profoundly, the concerns about adult ‘hijacking’ of children’s rights for their own purposes that were raised in Chapter 2 apply equally to a litigation context. Gloppen highlights a number of factors that affect groups’ capacity to voice their socio-economic rights claims through legal mobilisation.6 These include the existence of practical and motivational barriers preventing access to the legal system, including cost, lack of information, cultural obstacles and fear and distrust. She also highlights issues such as the structure of the legal system, legal literacy and the resources available to articulate and mobilise on legal issues. The developmental and socially, economically and culturally constructed characteristics of children, as well as their position as a social group, have clear implications for their ability to employ the legal system to advance their rights claims in terms of the indicators identified by Gloppen. This will be particularly so in relation to children living in poverty or who are otherwise marginalised. In practice, the limited ability of children to employ the law themselves to forward their interests is borne out by the dearth of socio-economic rights cases initiated by children. It is important not to disregard the obstacles that the problems discussed above may pose to the vindication of children’s rights through the employment of the law. However, for the purpose of the remainder of my arguments

5 M Minow, ‘Interpreting Rights: An Essay for Robert Cover’ (1987) 96 Yale Law Journal 1860, 1888–89. Minow proceeds to point out that the problem of distrusting lawyers’ interpretations of clients’ interests is well-known in public interest litigation and that, if there are reasons to distrust legal representatives of children, there are reasons to distrust legal representatives of adults. She suggests that the court could order a set of practical steps in order to carry out their special task of guarding the interests of children in litigation (ibid 1888–90). 6 S Gloppen, ‘Courts and Social Transformation: An Analytical Framework’ in R Gargarella et al (eds), Courts and Social Transformation in New Democracies (Aldershot, Ashgate, 2006) 35, 45–48.

224 Proceed With Caution? here, I will presume that they have been overcome (ie that a case has been initiated). I will focus instead on those issues that are relevant to the representation of children during legal proceedings and consider how these may impact upon the efficacy of the courts’ enforcement of children’s socio-economic rights. I do so on the basis that the existence of children’s rights litigation demonstrates that the obstacles to bringing litigation can be overcome. Therefore, I am chiefly concerned with how initiated cases can be rendered as effective as possible. The legal incapacitation and resultant limited ability of children to instruct or supervise their legal representatives raises numerous issues. One of the most significant of these is that a lawyer may accord a very different priority or strike a very different balance between the various rights or interests of children, than would children themselves. This may be particularly likely where a case involves both civil and political rights and socioeconomic rights, due to the fact that, for an adult lawyer, adult-related civil and political rights issues may be perceived as being of greater importance than those that are socio-economic.7 Lawyers might, therefore, accord a higher priority to the civil and political rights-related interests of the child than to their socio-economic rights-related ones. The failure of lawyers to take into account children’s prioritisation of their rights is particularly problematic in the context of the rights of older, more mature children who are capable of such activity. Indeed, under a liberal paternalism model such as that highlighted in Chapter 1, there may be good reason to question or override the priority accorded by young children to their rights/interests. In addition, some children will not be capable of such prioritisation at all (for instance, infants). The risk that lawyers will not take children’s interests into account may be moderated by appointing a professional guardian ad litem and requiring that individual to provide a report to the court of the children’s views and wishes. This still entails, however, adult mediation of children’s views about their rights. Similar questions arise in relation to the use of legal action by Children’s Public Defenders or ombudspersons to protect children’s rights, such as occurs in a number of Latin American jurisdictions.8 Careful interrogation of the role of such actors is necessary; what interests do they choose to bring actions in relation to? Which children are they acting ‘on behalf’ of? Is the form of action taken the most appropriate to ensure the interests of all children, or of the most needy children? Do these actors operate to ‘represent’ children as a whole or a particular group(s) of children? Should they be challenging broadly applicable legal, policy or structural obstacles to children’s socio-economic rights or specific actions of particular entities that 7 For more on the potential disconnect between adult and children’s perceptions of the relative importance of children’s rights, see Chapter 2. 8 For more on Children’s Public Defenders or ombudspersons in Latin America, see Chapter 2.

The Drawbacks 225 impact on relatively narrow groups of children?9 Raising these questions is not intended to suggest that such office-holders do not carry out a valuable function in terms of ensuring the protection of children’s rights, but rather to identify the range of considerations to be taken into account when trying to ensure that they are acting so as to effectively prioritise the rights of the most vulnerable and marginalised children. The frequently limited contact between children and their lawyers also produces problems. It may result in a failure on the part of legal representatives to fully appreciate the circumstances of the children they represent and, accordingly, the significance of specific rights to such children. Take, for instance, a case involving the right to education of impoverished children. A lawyer may not appreciate that it is not sufficient that the court interpret the right to education expansively to include an obligation for states to take positive measures to construct schools where, in the absence of the provision of school meals, children will not be able to enjoy effectively the right to education in the new facilities. In other words, by focussing on one particular right (or aspect of a right), lawyers and courts may fail to grasp the ‘bigger picture’ and the other rights of children (in this instance, the right to food) that must be guaranteed in order to ensure that the particular right at issue can be effectively vindicated. This, in turn, may reduce lawyers’ ability to frame arguments in such a way as to effectively improve those circumstances. A lack of contact and communication between children and lawyers may pose a particular problem in socio-economic rights cases, as lawyers are likely to come from a very different socio-economic (and frequently racial or ethnic) background from that of the children that they represent.10 Wexler has observed that there are a host of social, cultural and psychological differences that tend to divide rather than unite poor people and their lawyers.11 These differences serve to aggravate the pre-existing adult–child power differential. With children there is a further dividing difference: age. The potential disconnect between children’s views on their rights and those of their legal representatives is exacerbated in the context of collective cases, given the possibility of divergent views on the part of children, which their representatives may be either unable or uninterested in gauging and reflecting.

9 For a similar query in the context of the Brazilian Public Prosecutor, see J Reinaldo de Lima Lopes, ‘Brazilian Courts and Social Rights: A Case Study Revisited’ in R Gargarella et al (eds), Courts and Social Transformation in New Democracies (Aldershot, Ashgate, 2006) 185, 201–2. 10 This is undoubtedly a risk that exists between adult clients and lawyers as well, particularly in cases involving socio-economic rights, as lawyers will often be more affluent than those they represent. However, the relatively greater capacity of the adult client to exercise control over his legal representative may compensate for this in a way, and to an extent, that is not possible where the client in question is a child. 11 S Wexler, ‘Practicing Law for Poor People’ (1970) 79 Yale Law Journal 1049, 1052.

226 Proceed With Caution? Article 12(2) of the Convention on the Rights of the Child (CRC) states that the child must be ‘provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law’. If this requirement is to be fulfilled in the context of socio-economic rights litigation, lawyers speaking on behalf of the child must ensure that it is the child (or children’s) voice(s) that they are giving effect to, rather than their own.12 In its General Comment No 12 on the Child’s Right to be Heard,13 the Committee on the Rights of the Child stated that: If the hearing of the child is undertaken through a representative, it is of utmost importance that the child’s views are transmitted correctly to the decision maker by the representative. The method chosen should be determined by the child (or by the appropriate authority as necessary) according to her or his particular situation ... The representative must be aware that she or he represents exclusively the interests of the child and not the interests of other persons (parent(s)), institutions or bodies (eg residential home, administration or society). (emphasis added)14

One should not, however, overstate the problems that may arise in providing legal representation to children in the context of socio-economic rights adjudication. A sweeping presumption that lawyers cannot effectively represent the rights of those from dissimilar backgrounds to their own would effectively operate to preclude lawyers from representing anyone other than their peers. It should not be assumed that lawyers do not, or cannot, adopt a self-conscious, critical approach towards their role in the context of litigating children’s socio-economic rights. That they should do so is critical in light of the reality highlighted by Appell that, as children’s rights have developed, ‘children’s attorneys have played a larger role in children’s lives and in the construction of childhood itself’.15 Another representation-related issue may arise where a lawyer acts on behalf of both adults and children. In such a case, there is a risk that lawyers may prefer to focus exclusively on the rights of the adults, presuming that parents will provide for the socio-economic rights of their children. A successful outcome in terms of the adults’ rights claim in a particular instance may well result in the vindication of both their and (indirectly) their children’s socio-economic rights. In the long term, however, children may be

12 For a useful overview of the right of children to be heard in any judicial or administrative proceeding affecting them based on examples from the laws and practices of 52 countries around the world, see O’Donnell, above n 3. 13 UN Doc CRC/C/GC/12 (2009). 14 Ibid paras 36–37. 15 R Appell, ‘Representing Children Representing What? Critical Reflections on Lawyering for Children’ (2008) 39 Columbia Human Rights Law Review 573, 587.

The Drawbacks 227 less well-served than they would have been had the court had to consider an argument that they had an independent, enforceable entitlement. Furthermore, where children’s socio-economic rights are presented to a court in the context of litigation together with those of others (poor family members, for instance), this may result in their rights claims being side-lined because of, for example, a judicial preference for focussing on the rights of ‘everyone’ rather than on those of children in particular. This has been demonstrated in the South African Constitutional Court’s case law, most notably in its failure to ground its decision-making on the childspecific constitutional socio-economic rights provisions in a number of key decisions, despite those provisions serving as a basis of the applications before it.16 Notably, in the housing rights case, Government of the Republic of South Africa and others v Grootboom and others, the Court expressed concern that interpreting the relevant child-specific constitutional provision as imposing a ‘right to shelter on demand’17 presented the ‘obvious danger’ that ‘[c]hildren could become stepping stones to housing for their parents instead of being valued for who they are’.18 Thus, in the Court’s view, the recognition of children as discrete rights-holders with claims versus the state that differ from those of their parents might pose the risk of children’s rights being co-opted to provide benefits for children’s care-givers, leading to the devaluation of the children themselves. Where courts consistently prefer to deal with the rights of ‘everyone’, rather than those of children specifically, this will result in children’s specific claims being subsumed into those of adults, even where this serves to disadvantage children by failing to accord adequate attention to their particular situation, vulnerability and interests. In adopting such an approach, courts fail to advance a conception of children as distinct rights-bearers in their decision-making. In addition, a judicial failure to acknowledge, and engage with, children’s particular situations and rights-claims may have an especially serious impact on those children who cannot rely on parents/carers to provide for their socio-economic rights.19 Finally, where judicial 16 See Government of the Republic of South Africa and others v Grootboom and others 2000 (11) BCLR 1169 (CC), paras 74 and 92. For further discussion of the Grootboom case, see Chapter 3. See Chapter 4, n 114 for more on the Constitutional Court’s treatment of this issue in Minister of Health v Treatment Action Campaign (No 2) (2002) (5) SA 721 (CC) (TAC). The only case in which the Court explicitly found a violation of the child’s socioeconomic rights under s 28(1)(c) CRSA was Khosa and others v Minister of Social Development and others 2004 (6) BCLR 569 (CC). For a discussion of this case, see Chapter 5. In the case, the Court failed to discuss s 28(1)(c) in any detail, merely finding that the denial of certain benefits to the South African born children of non-citizen permanent residents ‘trenches upon their rights under section 28(1)(c) of the Constitution’ (para 78). 17 Grootboom, above n 16, para 70. 18 Ibid. 19 It should be noted that the courts in Grootboom and TAC made it clear that there might be some circumstances in which the state (rather than parents) would have primary responsibility for the fulfilment of children’s rights; for instance, where implementation of the right

228 Proceed With Caution? decision-making relies on or reflects the traditional (and false) presumptions discussed in Chapter 1 that (a) children’s socio-economic rights-related interests are identical to those of their parents, family unit or carers, and (b) children’s socio-economic rights-related needs will necessarily be met by their family/carers, the potential for the courts to ensure the realisation of children’s socio-economic rights will necessarily be severely reduced. While the particular position of children with regard to litigation has not always been given the attention it requires (even by children’s rights advocates) there is evidence that appreciation of the particular challenges posed in relation to the litigation of children’s rights is growing. This is at least partially attributable to the impact of the discussions surrounding the development of an Optional Protocol to the CRC providing for an individual complaints mechanism.20 Work such as that of the Child Rights Information Network on strategic litigation,21 as well as the growing profile of children’s rights litigation organisations such as the South African Centre for Child Law,22 are evidence of the increasing interest in the issues surrounding the effective litigation of children’s rights, together with an evolving (albeit still nascent) understanding of the child-specific elements and implications of strategic litigation. Much work remains to be done, however, to ensure that such litigation is not simply protective of children on whose behalf it is being taken, but is actively shaped and influenced by their views in relation to their rights and that children are involved in the follow-up and implementation processes. Another related point should be mentioned here. It has been suggested in the context of lawyers practising ‘poverty law’, that such activity may actually have a negative impact on the situation of the poor as it encourages poor people to develop dependencies on lawyers rather than helping them to serve themselves.23 This argument is founded, amongst other things, on the notion that it is better for people to acquire new skills than new

to parental or family care is lacking through the child’s removal from the family environment (Grootboom, above n 16, para 77) or in the case of parental inability to provide for the child’s socio-economic rights (TAC, above n 16, para 79). This has not, however, resulted in the Constitutional Court being prepared to conclude that children have a direct individual entitlement to socio-economic rights-related goods or services in any of the cases that have come before it. 20 See, eg the submissions to the Human Rights Council Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure (14–18 December 2009) of Marta Santos Pais, Special Representative of the Secretary-General on Violence Against Children, Peter Newell and Paulo Sérgio Pinheiro, Commissioner and Rapporteur on the Rights of the Child, Inter-American Commission on Human Rights, available at www.crin.org/resources/infodetail.asp?id=21261. 21 See, eg Children’s Rights Information Network, Children’s Rights: A Guide to Strategic Litigation (London, CRIN, 2009). 22 For more information on the Centre for Child Law, see www.centreforchildlaw.co.za/. 23 See, eg Wexler, above n 11, 1052, 1053.

The Drawbacks 229 dependencies.24 This complaint has less force in the context of practising law to forward the rights of poor children. In fact, due to the difference between the position of children and that of adults, using lawyers does not necessarily lead to the unacceptable creation of dependency in the case of children because (as I have argued in Chapters 2 and 3) children are largely dependent on others for the forwarding of their rights anyway, be it through legal, political or other channels. Furthermore, they are often unable to and/or are precluded from performing those tasks (legal, political or organisational) that would be necessary to ensure the solution of their poverty-related problems. One might argue that where law is employed to advance children’s rights, this then represents a deepening of dependency. However, if such litigation is carried out in a child-centric and child rightsrespectful way, then it may be empowering of children, in that it can be constructed as a mediated lawyer-client relationship rather than simply as a paternalistic relationship of dependency. More weightily, it might be asserted that using the law to forward children’s socio-economic rights not only serves to steer activists to an institution that is constrained from helping them, but it also siphons off crucial resources and talent, and runs the risk of weakening political efforts.25 The success of this claim depends, however, on the existence of a strong, well-organised lobby prepared to campaign for children’s socio-economic rights, which, were the resources spent on litigation diverted to it, would use these to take effective action to ensure the enforcement of children’s socio-economic rights through the political system. In Chapter 2, I argued that a ‘children’s lobby’ organised by children is unlikely to prove an effective political force. I also highlighted the problems inherent in relying on other groups (adults, parents, legislators) to forward children’s socio-economic rights. While litigation is often merely one of several strategies employed by other social minority groups seeking to forward their rights, this is less likely to be the case with children to whom ‘political’ strategies are less available. Therefore, the legal route assumes a relatively greater importance for them. One criticism that has been made with regard to public interest litigation in the United States (and, indeed, may be made with regard to such litigation elsewhere) is that lawyers and leaders in public interest groups often use cases to secure symbolic political goals that may be irrelevant or harmful to their nominal clients.26 An example of this was the Brown v

24

Ibid 1053, 1055. This statement is adapted from one made by Rosenberg in relation to using litigation to produce social change. (G Rosenberg, Hollow Hope: Can Courts Bring About Social Change? (Chicago, IL, University of Chicago Press, 1991) 339). 26 B Hafen, ‘Book Review, Exploring Test Cases in Child Advocacy: In the Interest of Children—Advocacy, Law, Reform, and Public Policy by Robert H Mnookin’ (1986) 100 Harvard Law Review 435, 439. 25

230 Proceed With Caution? Board of Education litigation,27 which, largely through the efforts of civil rights lawyers, was subsequently construed by courts to mandate ‘equal education opportunities’ through school desegregation aimed at achieving racial balance, regardless of whether or not those plans would improve the education received by the children affected.28 This was in contrast to the primary concern of those parents whose children’s rights were at issue in the case, and whose aim was educational improvement.29 Thus, in later ‘school desegregation cases’, clients’ educational interests were often subordinated to the integration ideals of their attorneys. One might claim that the threat of children’s rights/interests being subordinated to a broader (if to them, less relevant) political goal is especially great due to their inability to exercise effective control over their representatives. However, the risk of this may not be significant in cases in which it is children’s socio-economic rights that are at issue. This is because most cases involving socio-economic rights are not primarily motivated by the desire to achieve a political victory, but rather by the urgent need to ameliorate the social conditions of a particular group of children (albeit that this may form part of or feed into a broader political aim). Furthermore, even where children’s socio-economic rights are used by advocates to secure symbolic goals, this will not necessarily mean that children will achieve no benefit from the process. Where a lawsuit involving socio-economic rights is successful and the decision implemented, children will almost certainly derive an immediate or future socio-economic rights-related benefit, thereby ensuring that the victory is not entirely symbolic in nature. One final issue needs to be addressed in the context of representation and agenda-setting. That is the issue of which children’s rights are litigated. Just as poor children are less likely to be able to litigate their own rights, they are less likely to have advocates willing or able to bring litigation on their behalf. Furthermore, children from wealthier backgrounds are less likely to require state delivery of socio-economic rights-related goods and services. There thus seems to be reasonable grounds for concern that, far from primarily benefitting the worst off children, judicial enforcement of children’s socio-economic rights is likely to reflect issues that are of greatest importance to children located in the middle, rather than the lower

27 Brown et al v Board of Education of Topeka et al, 347 US 483 (1954) (‘Brown I’) and Brown et al v Board of Education of Topeka et al, 349 US 294 (1955) (‘Brown II’). 28 For more on this, see D Bell, ‘Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation’ (1976) 85 Yale Law Journal 470. 29 The Brown cases are also a good example of the lack of control that child plaintiffs have over their lawyers or those acting on their behalf. The father of the child in whose name the action was taken never even discussed his decision to sue on her behalf with his daughter (R Mnookin, In the Interest of Children: Advocacy, Law Reform, and Public Policy (New York, WH Freeman & Co, 1985) 9).

The Drawbacks 231 end of the socio-economic spectrum.30 There are other ‘divides’ between children that will also have implications for the ‘representativeness’ of the effective enforcement of their rights by the courts. For instance, there is evidence that the courts are more likely to be faced with rights claims from urban rather than rural rights-holders.31 However, as Gauri and Brinks argue based on experiences of socio-economic rights litigation in Brazil, South Africa and India, ‘those affected by public-policy initiatives triggered in one way or another by litigation vastly outnumber the people who benefit directly from the execution of a targeted judicial remedy ... [such] indirect effects are much less tied to the initial endowment of the claimant’.32 Thus, a far broader range of children are likely to benefit indirectly from the courts enforcing children’s socio-economic rights than those whose rights claims are the subject of the actual adjudication in question. To conclude this discussion of representation and agenda-setting, I am not arguing here that children’s reduced participation in legal proceedings and diminished control over their legal representatives will prevent a judgment in which the courts enforce children’s socioeconomic rights from bringing about the desired result of the realisation of children’s rights. However, where such an approach is based on legal arguments presented by children’s representatives that do not reflect a proper understanding of the needs, rights and views of children, the capacity or potential of such judicial activity to affect the desired result will be significantly reduced. This will especially be the case where those acting for children do not appreciate what is required to vindicate the rights at issue; do not realise the significance

30 Brinks and Gauri note with regard to the litigation of socio-economic rights generally that ‘if we simply look at who sues, it seems quite clear that, with important exceptions, the direct beneficiaries of litigation typically are neither the most disadvantaged nor the wealthiest citizens. One the one hand, the truly wealthy withdraw from public services and rarely use litigation to seek public goods ... At the other extreme ... [t]he destitute, the truly marginal and remote, who have little or no access to public health and education, also have little access to public legal or judicial services or to organised civil society ... The primary direct beneficiaries of legalisation, then, are likely to be the middle class residents of modernised, urban setting who have at least passing knowledge of legal procedures and access to legal processes’ (D Brinks and V Gauri, ‘A New Policy Landscape: Legalised Social and Economic Rights in the Developing World’ in V Gauri and D Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York, Cambridge, 2008) 303, 336–37). 31 For example, Ferraz highlights in the Brazilian context that research demonstrates that the majority of right to health claimants whose rights are addressed by the courts live in cities, rather than rural areas (O Ferraz, ‘Right to Health Litigation in Brazil: An Overview of the Research’, paper presented at a workshop on Rights to Health Through Litigation: Can Court Enforced Health Rights Improve Health Policy?, University Torquata di Tella, Buenos Aires, 15–17 April 2009, 20, 23). There is no reason to assume that this general pattern is not true in relation to children. 32 Brinks and Gauri, above n 30, 338–39.

232 Proceed With Caution? of particular socio-economic rights to children; fail to take account of the priority children themselves set on their various rights; or give the rights of adults priority in a case involving the rights of both adults and children. Furthermore, where the courts only ensure the enforcement of the rights of certain categories of children, this will necessarily raise questions about the appropriateness of litigation strategy and the courts as tools to advance the socio-economic rights of children generally.

The Partial Nature of Legal Solutions I now turn to another alleged drawback in using the law to enforce children’s socio-economic rights: the partial nature of legal solutions. The key cause of violations of children’s socio-economic rights is child poverty. I have argued elsewhere that the adjudication of children’s socio-economic rights cannot, in and of itself, provide a comprehensive solution to child poverty.33 As stated in the Foreword to this work, like the realisation of socio-economic rights, the eradication of child poverty cannot be fully achieved without the committed participation of all branches of government. Leaving aside the issues that would arise in terms of the separation of powers or the counter-majoritarian objection if the court were to assume primary responsibility for the realisation of socio-economic rights or for devising a response to child poverty, the generally reactive role of the courts and their well-rehearsed (if frequently exaggerated) institutional limitations leave them poorly positioned to take on (or be assigned) the leading role in addressing such issues. Furthermore, any suggestion that child poverty can be remedied by judicial activity alone overstates the potential of socio-economic rights to address systemic poverty or the social and economic relations that cause and sustain such poverty in the first place. Joel Bakan argues, for instance, that socio-economic rights themselves will not touch the real causes of poverty and other social ills: ‘[s]ocial rights that impose obligations on governments to provide services, even if they are effective in protecting and improving those services … are unlikely to have any effect on the social and economic relations that produce the need for those services in the first place’ (footnotes omitted).34

Pogge has observed, with regard to the conceptualisation of poverty as a human rights issue, that ‘the change of language [from pity to rights] ... is 33 A Nolan, ‘Rising to the Challenge of Child Poverty: The Role of the Courts’ in G Van Bueren (ed), Fulfilling Law’s Duty to the Poor (Pennsylvania, Pennsylvania University Press/ UNESCO, forthcoming 2011). 34 J Bakan, ‘What’s Wrong with Social Rights?’ in J Bakan and D Schneiderman (eds), Social Justice and the Constitution (Ottawa, Carleton University Press, 1992) 85, 90.

The Drawbacks 233 still only a new form of words, a rhetorical triumph: one in a long series of paper victories. The real task is to end severe poverty on this planet’.35 The mere designation of a problem as a socio-economic rights issue and its subjection to judicial scrutiny will not miraculously result in it being remedied. Care must be taken that the construal of a particular cause as a ‘rights’ issue does not distract from, or is not confused with, the actual concrete advancement of that cause. This is particularly true where a problem is as multifaceted and deeply entrenched as child poverty. Where children’s socio-economic rights are being violated due to underlying, multifaceted problems such as poverty and social exclusion, the partial nature of any legal solution may mean that, while judicial intervention may result in particular children’s socio-economic rights in a specific context being guaranteed, the underlying problem will remain largely untouched and unremedied.36 From this perspective, the trouble with judicial solutions is that judicial action is too partial to attack the broad and deep origins of poverty,37 a necessary step in ensuring the long-term guarantee of children’s socio-economic rights. The causes of child poverty are numerous and complex, incorporating, as they do, macro-economic structures and policies, as well as phenomena such as HIV/AIDS and armed conflict. The law cannot serve as a panacea for all of these factors. In a similar vein, judicial orders may fail to address or alter other ingrained patterns such as custom, tradition, invidious discrimination or religious practices that may affect children’s enjoyment of socio-economic rights.38 That said, violations of children’s rights (socioeconomic and otherwise) are important factors in maintaining the chronic nature of poverty in general, and in contributing to the intergenerational cycle of poverty.39 Thus, where the law operates to prevent, remedy or punish such violations or where adjudication of children’s socio-economic rights results in the advancement of the implementation of those rights, this is likely to contribute to a reduction in the level of poverty being experienced by not only the child complainants in question but also a broader class of similarly-situated children.

35 T Pogge, ‘Introduction’ in T Pogge (ed), Freedom from Poverty as a Human Right: Who Owes What to the Poor? (Oxford, UNESCO/Oxford University Press, 2007) 1, 4. 36 For more on the inability of the judicial enforcement of children’s socio-economic rights to serve as a comprehensive solution to child poverty, see Foreword. 37 M Minow, Making All the Difference: Inclusion, Exclusion and American Law (New York, Cornell University Press, 1990) 367. 38 For instance a judicial order is arguably unlikely to change widespread societal gender bias that denies girl children enjoyment of their socio-economic rights on an equal basis with their male counterparts. It can, however, certainly operate to remedy particular manifestations of that bias. 39 J Doek ‘Child Poverty: An Overview’ in J Doek et al (eds), Child Poverty: African and International Perspectives (Mortsel, Intersentia, 2009) 3, 5.

234 Proceed With Caution? Courts: Part of the Problem? It is not just the limitations of representation and the partial nature of legal solutions that operate to reduce the law’s use as a tool to bring about the enforcement of children’s socio-economic rights. Courts themselves may also serve as an obstacle. As Pieterse notes, ‘the transformative potential of rights is significantly thwarted by the fact that they are typically formulated, interpreted, and enforced by institutions that are embedded in the political, social, and economic status quo’.40 Judges are predominantly members of societal elites with a presumptively consequent interest in the maintenance of existing power distributions—a fact that seems liable to have implications for the extent to which the courts will effectively ensure the socio-economic rights of children. Furthermore, court membership may have important implications for how judges approach the rights of particular groups of children. Indeed, the lack of gender, ethnic, racial and socio-economic diversity in terms of court make-up in many jurisdictions raises questions about the ability of judges to empathise or fully appreciate the rights claims of children from more marginalised sectors of society. The approach of courts towards the adjudication of socio-economic rights will have crucial implications for the judicial willingness or capacity to enforce children’s socio-economic rights. Notably, there appears to be a growing tendency amongst some of those courts that have previously demonstrated themselves to be prepared to enforce socio-economic rights to shy away from engaging with or assertively applying such rights. This is particularly evident in relation to the South African Constitutional Court and the Indian Supreme Court, both of which appear increasingly deferential to the elected branches of government in the context of socio-economic rights jurisprudence.41 The former has been fêted for its development of a well-reasoned socio-economic rights jurisprudence that confirms the amenability of such rights to judicial enforcement. However, its emphasis upon the procedural rather than the substantive aspects of socio-economic rights

40 M Pieterse, ‘Eating Socio-economic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited’ (2007) 29(3) Human Rights Quarterly 796, 797. 41 For a discussion of the growing reluctance of the Indian Supreme Court to enforce socio-economic rights, see, eg P O’Connell, Vindicating Socio-Economic Rights: International Standards and Comparative Experiences (London, Routledge, forthcoming 2011) ch 4; B Rajagopal, ‘Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective’ (2007) Human Rights Review 157; and C Gonsalves, ‘Reflections on the Indian Experience’ in J Squires, M Langford and B Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Sydney, University of New South Wales Press, 2005) 177. For a discussion of the South African Constitutional Court, see, eg J Dugard, ‘Courts and the Poor in South Africa: A Critique of Systemic Judicial Failures to Advance Transformative Justice’ (2009) 24(2) South African Journal on Human Rights 214; and the discussion of the Mazibuko case and other recent decisions of the South African Constitutional Court in Chapter 5.

The Drawbacks 235 obligations, together with its employment of a relatively weak standard of ‘reasonableness’ review, and a consistent refusal to interpret such rights as giving rise to directly enforceable entitlements, has resulted in that jurisprudence being criticised for providing only limited benefits to the poor.42 With regard to the Indian Supreme Court, Rajagpoul argues that that body’s activism ‘increasingly manifests several biases—in favour of the state and development, in favour of the rich and against workers, in favour of the urban middle-class and against rural farmers, and in favour of a globalitarian class and against the distributive ethos of the Indian Constitution’.43 O’Connell attributes the Court’s growing conservatism to the population of the Court by a new generation of judges who feel institutionally secure enough to side with the interests of the ruling elites,44 rather than feeling the need to reinforce their institutional legitimacy through appealing to ‘popular consciousness’.45 One issue that is especially relevant to a consideration of the efficacy of the judicial enforcement of children’s socio-economic rights is that of judicial willingness to construe such rights so as to ensure that they give rise to concrete benefits for children. The South African Constitutional Court, for instance, has been criticised for its failure to interpret children’s socioeconomic rights as imposing an immediate obligation on the state to fulfil children’s socio-economic rights in any case that has come before it thus far.46 It has failed to do so either by construing section 28(1)(c) of the South African Constitution (CRSA) as giving rise to an immediate entitlement to direct material provision from the state, or by identifying a minimum core inherent to the socio-economic rights of everyone set out in sections 26 and 27.47

42 See, eg J Dugard and T Roux, ‘The Record of the South African Constitutional Court in Providing an Institutional Voice for the Poor: 1995–2004’ in R Gargarella et al (eds), Courts and Social Transformation in New Democracies (Aldershot, Ashgate, 2006) 107; J Dugard, ‘Judging the Judges: Towards an Appropriate Role for the Judiciary in South Africa’s Transformation’ (2007) 20 Leiden Journal of International Law 965; D Davis, ‘Socioeconomic Rights: Do They Deliver the Goods?’ (2008) 6 International Journal of Constitutional Law 686; and S Liebenberg, ‘Needs, Rights and Transformation: Adjudicating Social Rights in South Africa’ (2005) 6 ESR Review 4. 43 Rajagopal, above n 41. 44 O’Connell, above n 41. 45 Ibid. 46 It should be noted, however, that there have been at least two instances in which a lower court has been prepared to recognise art 28(1)(c) CRSA as imposing immediate duties to fulfil. See Centre for Child Law and another v Minister of Home Affairs and others 2005 (6) SA 50 (T), where De Vos J found that the state was ‘under a direct duty to ensure basic socioeconomic provision for children who lack family care as do unaccompanied foreign children’ (at 5), and The Centre for Child Law v MEC for Education, Gauteng 2008 (1) SA 223 T, discussed in Chapter 5, n 66 and below. 47 For more on the courts’ refusal to interpret the socio-economic rights under the Constitution as giving rise to a minimum core obligation, see Chapter 1, n 134. For more on the South African Constitutional Court’s refusal to interpret s 28(1)(c) CRSA as giving rise to

236 Proceed With Caution? Other courts, such as the Argentinean Supreme Court, have been prepared to adopt a more nuanced view, regarding children’s socio-economic rights as imposing a combination of both immediate and progressive obligations. One example, the Beviacqua child right to health case, was mentioned in Chapter 1.48 Here, the Court relied heavily on provisions of the international treaties that form part of the Argentinean constitutional hierarchy, particularly the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the CRC.49 Amongst other things, it referred to the obligation of states parties under Article 2(1) ICESCR to progressively achieve the full realisation of the rights set out in the Covenant to the maximum of their available resources. It further stated that the government was obliged to ‘immediately’ take appropriate measures, in conformity with the Constitution and law,50 to ensure that the competent authorities of the federal state complied with the provisions of the ICESCR.51 The Colombian Constitutional Court has also been prepared to recognise that children’s socio-economic rights may give rise to an immediate entitlement

an immediate entitlement on the part of children, see the discussion of the Court’s decision in Grootboom, above n 16, in Chapter 3. The Court proceeded to use TAC, above n 16, to clarify (see G Budlender, ‘A paper dog with real teeth’, Mail & Guardian, 12 July 2002) or, perhaps, correct its previous stance on s 28(1) (email from Danie Brand, Department of Public Law, University of Pretoria, 3 September 2002, cited in A Snellman, The Development of a Socio-economic Rights Jurisprudence in South Africa: A Minor Field Study (unpublished dissertation, Örebro University, 2002) 43 (on file with author)). The court emphasised that the Constitutional Court in Grootboom had made it clear that its construal of s 28 did not mean that ‘the state incurs no obligation in relation to children who are being cared for by their parents or families’ (TAC, para 77, citing Grootboom, para 78). Pointing out that children’s needs are ‘most urgent’ and their inability to have access to Nevirapine profoundly affects their ability to enjoy all rights to which they are entitled, the Court continued: ‘their rights are “most in peril” as a result of the policy that has been adopted and are most affected by a rigid and inflexible policy that excludes them from having access to NVP’ (TAC, para 78). The Court emphasised that the state is obliged to ensure that children are accorded the protection contemplated by s 28 that arises when the implementation of the right to parental or family care is lacking (TAC, para 79). This case concerned children born in public institutions to mothers who ‘were for the most part indigent and unable to gain access to private medical treatment which is beyond their means. They and their children are in the main dependent upon the state to make healthcare services available to them’ (ibid). The Court thus made it clear that the state’s duties to provide children’s socio-economic rights under s 28 is not limited to instances in which children lack a family environment or are physically separated from their families. However, the Court adhered to its reasoning in Grootboom and did not conclude that children had a direct individual entitlement to healthcare services in circumstances where their parents could not afford these services (S Liebenberg, ‘Taking Stock: The Jurisprudence on Children’s Socio-economic Rights and its Implications for Government Policy’ (2004) 5(4) ESR Review 4). Instead, the Court relied on the right of children to basic healthcare services in s 28 to support its finding that the government’s policy was ‘unreasonable’ because the policy excluded and harmed a particularly vulnerable group (ibid). 48 Campodónico de Beviacqua, Ana Carina v Ministerio de Salud y Banco de Drogas Neoplácias, Supreme Court of Argentina, 24 October 2000. 49 Ibid paras 17–18. 50 Ibid para 19. 51 Ibid para 20.

The Drawbacks 237 to state provision. For instance, in SU-225/98,52 the Constitutional Court made it clear that the socio-economic rights of the child set out in Article 44 of the Colombian Constitution have an essential content of immediate application. Admittedly, commentators differ greatly on whether socio-economic rights-holders should be provided with immediately enforceable individual claims against the state. On the one hand, as highlighted above, it is argued that the provision of a direct entitlement ensures that socio-economic rights are substantive and not merely procedural in nature.53 On the other hand, it is claimed that judicial recognition of direct entitlements runs the risk of a flood of litigation which might result in those children that do not sue being disadvantaged, as the state will have to put all its resources towards meeting court-enforced claims. This argument has been made in relation to the extensive litigation and adjudication of the directly applicable right to health in Brazil, albeit that this issue has not been raised with regard to the child’s right to health specifically.54 In his review of a range of studies, Ferraz states that most research finds that the vast majority of cases involve a claim for the direct provision by the state of medicines or treatment.55 In his view, the prevailing model of right to health litigation, which is characterised by a prevalence of individualised claims demanding curative medical treatment (most often drugs) and by a high success rate for the litigant, is probably worsening the country’s already pronounced health inequities.56 However, Hoffman and Bentes have argued that the ‘queue-jumping phenomenon’ and ad hoc shifting of resources towards litigants as a result of the Brazilian right to health cases is aggravated by ‘the prevailing judicial formalism and the resulting reticence on the part of the courts to engage in substantive determinations of need, adequacy and proportionality’.57 Thus, it seems that it is not simply judicial recognition of direct entitlements (or other individual socio-economic rights claims) per se that causes a distortion of government

52

SU-225/98. For more on this decision, see Chapter 3. For a critique of the ‘emptiness’ of socio-economic rights jurisprudence which denies that socio-economic rights embody immediately enforceable individual claims, see Pieterse, above n 40, 796822. 54 For more, see F Henriques, ‘Direito Prestacional à Saúde e Atuação Jurisdicional’ in C Souza Neto and D Sarmento (eds), Direito Sociais (Rio de Janeiro, Lumen Juris, 2008), cited in A Maués, ‘The limits of litigation strategies: the case of right to health in Brazil’, paper presented at Conference on The Local Relevance of Human Rights, University of Antwerp, Belgium, 16–18 October 2008. 55 Ferraz, above n 31, 20. 56 See O Ferraz, ‘The Right to Health in the Courts of Brazil: Worsening Health Inequities?’ (2009) 11(2) Health and Human Rights 33. 57 F Hoffman and R Bentes, ‘Accountability for Social and Economic Rights in Brazil’ in V Gauri and D Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York, Cambridge, 2008) 100, 142. 53

238 Proceed With Caution? efforts to give effect to the health rights of the population generally. Rather, it is the form that such judicial recognition and enforcement takes. More broadly, one might argue that if the state were to be concerned solely with court-identified immediate demands, it would be impossible for it to develop a coherent and effective anti-poverty strategy. In refusing to interpret children’s constitutional socio-economic rights as imposing an immediate positive obligation on states, the South African Constitutional Court has left itself open to accusations of having failed to give effect to the Constitution’s intention to accord priority to children in light of their particular vulnerability and needs.58 Where children are not entitled to directly claim socio-economic rights-related goods and services, their socioeconomic rights run the risk of being essentially meaningless or of no value to them due to their lack of concrete content and inability to result in the actual satisfaction of the child’s material need. Ultimately, where rights are never interpreted to give rise to an immediate entitlement or to include a minimum content, they would seem likely to be of only limited use in tackling the more egregious manifestations of severe poverty. That is not to suggest that it will be appropriate for the courts to interpret socio-economic rights as giving rise to a direct entitlement in every case. Rather, it is necessary for judges to strike a balance between ensuring that, first, the state has adequate space in which to formulate and implement anti-poverty strategies that will provide for children (and others) on a general level; and, secondly, that the basic needs of the most disadvantaged are met to the greatest extent possible. There is no reason to assume that a court would be unable to formulate a general approach as part of which such a balance could be struck on a case-to-case basis. In order to ensure effective socio-economic rights enjoyment for children, courts may have to be prepared to accord precedence to their rights vis-à-vis those of other rights-holders. The afore-mentioned unwillingness of the South African Constitutional Court to accord priority to children contrasts sharply with other courts. For instance, as highlighted in Chapter 1, the Colombian Constitutional Court has been prepared to regard a number of children’s socio-economic rights as being ‘fundamental’ and hence subject to immediate application by the courts. The priority accorded to children under the Colombian constitutional framework and by the Colombian courts is reflected in a recent decision of the Colombian Constitutional Court.59 This judgment was based on 22 joined tutelas which were selected in order to demonstrate systemic problems in the health system. The Court granted a range of orders aimed at restructuring the country’s health system, 58 See, eg J Sloth-Nielsen, ‘The Child’s Rights to Social Services, the Right to Social Security, and Primary Prevention of Child Abuse: Some Conclusions in the Aftermath of Grootboom’ (2001) 17 South African Journal on Human Rights 210, 229. 59 T-760/08.

The Drawbacks 239 including health benefit plans. Amongst other things, the Court ordered the legislatively established contributory and subsidised benefits regimes to be unified. This was to be done in the first case for children and youth, while, with regard to adults, it was to be done progressively taking into account sustainable funding. Similarly, the absolute priority of children with regard to socio-economic rights, which is set out in article 227 of the Brazilian Constitution, has been recognised by both national superior courts in that jurisdiction.60 While I would certainly not claim that children are the only group that should be accorded priority in terms of socio-economic rights enforcement,61 judicial failure to acknowledge and give effect to such priority will inevitably impact on the role played by courts’ decisions in the realisation of children’s socio-economic rights given the social and political subordination and marginalisation of children. Furthermore, where such a judicial approach seems to fly in the face of the specific wording of the Constitution (as in the South African case),62 this will have a detrimental effect upon public perceptions of the court as being concerned with such rights. The efficacy of the judicial enforcement of children’s socio-economic rights will not simply be affected by the court’s approach to socio-economic rights—it will also be impacted upon by courts’ approach towards children’s rights or to the rights of particular groups of children. Just as it cannot be assumed that legislators will share interests with or be able to relate to the situation of socio-economically disadvantaged children, the same is true of judicial decision-makers. The Irish case of TD v Minister for Education,63 discussed in Chapter 4, demonstrates this well. Having stated that the first applicant (a child with a serious personality disorder) had manifested ‘continued non-cooperation and unwillingness to assist’ in relation to the efforts of these persons and institutions seeking to deal with his particular needs and difficulties, Hardiman J continued:64

60 F Piovesan, ‘Brazil: Impact and Challenges of Social Rights in the Courts’ in M Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (New York, Cambridge University Press, 2008) 182, 187. 61 Examples of other vulnerable groups that have a claim to priority include the disabled and the elderly. 62 The phrasing of s 28(1)(c) CRSA led many academic commentators to conclude that the rights therein imposed an immediate obligation on the state to fulfil them, thereby providing children with a direct immediate entitlement against the state. See, eg P De Vos, ‘Pious Wishes or Directly Enforceable Human Rights?: Social and Economic Rights in South Africa’s 1996 Constitution’ (1997) 13(1) South African Journal on Human Rights 67, 87–88; F Viljoen, ‘Children’s Rights: A Response from a South African Perspective’ in D Brand and S Russell (eds), Exploring the Core Content of Socio-economic Rights: South African and International Perspectives (Pretoria, Protea Book House, 2002) 201, 203–4. G 63 TD v Minister for Education [2001] IESC 86. 64 Ibid para 257.

240 Proceed With Caution? The evidence summarised above demonstrates, in my opinion, that it would be quite wrong to regard the public services and persons connected with them as having in some general sense failed this young man: on the contrary, they have made conspicuous efforts to address his problems. But no matter what facilities are provided, and regardless of whether they are provided by public bodies or on the private initiative of parents, they will have no beneficial effect on a particular child or young person without his own cooperation. The fact that such cooperation is not forthcoming is not in itself evidence that the services provided are inadequate.65

In reaching this conclusion, Hardiman J appeared to accept the view of a divisional inspector of the Department of Education and Science who, during the course of giving evidence, alleged that ‘rather than accommodation or facilities being inadequate it is the particular applicant’s failure to cooperate or to avail of the various opportunities offered to him which has led to his case been [sic] adjourned generally’.66 This testimony flew in the face of evidence presented by TD’s lawyers. Hardiman J appeared to fail to appreciate that, whatever TD’s needs in the past, at the time of the High Court hearing, he urgently required placement in a high support unit and that the state was obliged to provide him with such in order to vindicate his constitutional rights, regardless of his ‘continued non-cooperation and unwillingness to assist’. Indeed this ‘non-cooperation’ would probably better be viewed as being symptomatic of TD’s ‘special needs’ and the fact that he had been a drug addict since the age of 15. Ultimately, where the courts are unwilling or unable to engage properly with, or are dismissive of, the specific position of children as rights-holders, this will inevitably have serious consequences for their ability to give adequate effect to the rights of such children. There is, of course, one final issue that must be mentioned when considering the overall impact of the judicial enforcement of children’s socioeconomic rights, namely, the impact of the role of the courts on that of the elected branches of government, including the risk that a prevalence of legal suits may result in their becoming regarded by public servants and other state agents as an extra-official requirement for state action, thereby undermining state efforts to meet the needs of all rights-holders. In such a situation, the state will only be prepared to act where there is judicial impetus to do so. In the Colombian context, Lemaitre Ripoll suggests that tutela actions involving the right to survival have become regarded as one more bureaucratic prerequisite in the process of compelling state action; thus, a person who does not ‘have his tutela’ will not receive a particular socio-economic rights-related good or service, despite their constitutional

65 66

Ibid para 257. Quoted by Hardiman J in ibid para 255.

Of Straitjackets and Obligation Limitations 241 entitlement to such.67 She argues that the reduction of socio-economic rights tutela from being an exceptional mechanism to an everyday bureaucratic one is evident not only from the anecdotal data collected from various forums but also from the very high number of claims, which suggests that the defendant entities have not changed their behaviour.68 It is unclear how the courts can act to address this issue, other than to ensure that their decisions require systemic changes on the part of the state so as to minimise the risk of ‘repeat applications’. This consideration of whether the courts ‘are part of the problem’ serves as a natural springboard for the discussion in the second part of this chapter, which centres on some of the potential risks of relying on judicial enforcement to ensure the realisation of children’s rights. Here, I will focus particularly on what might be designated the ‘constraining effects’ of judicial decision-making. OF STRAITJACKETS AND OBLIGATION LIMITATIONS: JUDICIAL ENFORCEMENT AS ‘BLOCKING’ THE VINDICATION OF CHILDREN’S SOCIO-ECONOMIC RIGHTS?

One might claim that, by removing or controlling the state’s discretion with regard to law- and policy-making, judicial enforcement of children’s socio-economic rights may actively hamper state efforts to ensure the enforcement or realisation of children’s rights. This will particularly be so where an order granted by the court serves as a constraint on the state’s law- and policy-making discretion such as to prevent the elected branches of government from adopting a more effective course of action to vindicate children’s rights. This claim can be easily rebutted. It is, of course, quite possible for the court to structure or phrase an order so as to prevent a decree that is initially beneficial in terms of ensuring rights vindication by the state from subsequently becoming an obstacle to, or straitjacket, on such. In Minister of Health v Treatment Action Campaign, the South African Constitutional Court acknowledged that policy is and should be flexible, and that the executive is always free to change policies where it considers it appropriate to do so: the only constraint is that policies must be consistent with the Constitution and the law.69 It concluded, therefore, that court orders concerning policy choices made by the executive should not be formulated 67 J Lemaitre Ripoll, ‘Someone Writes to the Colonel: Judicial Protection of the Right to Survival in Colombia and the State’s Duty to Rescue’, paper presented at a ‘Seminar on Constitutional and Politics Theory in Latin America’ (Seminario en Latinoamérica de Teoría Constitucional y Política), Rio de Janeiro, Brazil, 16–19 June 2005, 21. 68 Ibid 21. 69 TAC, above n 16, para 114.

242 Proceed With Caution? in ways that preclude the executive from making such legitimate choices.70 Having handed down a series of mandatory orders, the Constitutional Court proceeded to state that, ‘[the orders] do not preclude government from adapting its policy in a manner consistent with the Constitution if equally appropriate or better methods become available to it for the prevention of mother-to-child transmission of HIV’.71 The Court thus made it clear that, should more effective means for vindicating the right of access to health services be identified, the government was free to adapt its policy to take these into account. As long as the orders granted by courts in instances where they have sought to enforce children’s socio-economic rights allow the executive room to adapt its policy in a manner consistent with its constitutional obligations, there is little risk that such judicial activity will operate so as to hinder the state in giving effect to children’s socio-economic rights. That said, where courts are overly narrow or prescriptive in their approach, issues may arise vis-à-vis the effective realisation of children’s socio-economic rights more broadly. In practice, where services or facilities are acquired by litigation, the nature of the particular litigation tends to govern the nature of the facilities that are provided.72 For instance, when a court addresses an issue such as health, education or childcare through the lens of a case involving a specific group of children, the court may proceed to require the state to focus its policy (and hence resource allocation) on one particular option of goods/service/facilities delivery, to the exclusion of other options. This may result in the subordination of the needs of other vulnerable children. The courts must be sensitive to the implications of their decisions for nonlitigating children (and others). However, they must also ensure relief for those children whose rights they are adjudicating upon. Where children have a constitutional right to socio-economic goods and services, the court’s obligation to give effect to this right is not lessened by the (potentially competing) rights claims of others, albeit that those claims may well have implications for the court’s construal of the obligations imposed by that right and the nature of the order that it makes. I will return to this issue below in the context of discussing the impact of the judicial enforcement of children’s socio-economic rights on other, non-litigating children. When seeking to give effect to children’s socio-economic rights, the court may order the state to take specific steps to satisfy the obligations imposed by those rights. Inevitably, these will be premised upon the court’s understanding of the scope of the obligations that those rights entail. What of the ‘risk’ that, in light of future information or knowledge that has implications for the 70

Ibid. Ibid, para 4 of the orders made. 72 Gerard Durcan, cited in G Whyte, Social Inclusion and the Legal System (Dublin, Institute of Public Administration, 2002) 212. 71

Of Straitjackets and Obligation Limitations 243 obligation recognised by the court, such steps may prove to be inadequate or not as effective in terms of rights-vindication as other activities would be? This might occur, for example, where a court orders a specific series of steps to be taken by the state to guarantee the right to health of children suffering from particular health conditions. As scientific knowledge of how to address that condition evolves, the understanding of the extent of the obligation imposed on the state by children’s right to health (as well as how it may/should be given effect to) will also develop. One example of evolving obligations in the context of the right to education of children with mental disabilities is the Irish High Court decision in O’Donoghue v Minister for Health.73 In this case, the mother of a severely mentally handicapped 11-year-old boy instituted legal proceedings against the Ministers for Heath and Education. She sought an order from the High Court directing the defendants to provide free primary education for her son and also a declaration that, in failing to provide for such education, the state had deprived him of his constitutional rights under articles 40 and 42 of the Irish Constitution.74 Amongst other things, the state argued that (a) the applicant, by reason of being profoundly mentally and physically disabled, was ineducable, and that all that could be done for him to make his life more tolerable was to attempt to train him in the basics of bodily function and movement; and (b) the education that the state was obliged to provide pursuant to article 42.4 was education of a conventional, scholastic nature, as exemplified in the curriculum of the National Schools, and that such training as could be provided to the plaintiff could not be regarded as ‘primary education’ within the meaning of that expression as used in article 42.4. In the High Court, O’Hanlon J referred to the definition of education set out by the Supreme Court in an earlier decision, in which education was defined as ‘the teaching and training of a child to make the best possible use of his inherent and potential capacities, physical, mental and moral’.75 In light of this definition, and taking into account the advances made internationally in the area of education for children who suffer from a severe or profound mental handicap, as well as the evidence before the court (which was to the effect that the applicant had made good progress and could make further progress), he held that the applicant was not ineducable. With regard to the second argument, the judge found that as soon as it had been established in the 1970s that children with a severe mental handicap were educable, there arose a constitutional obligation on the part of the state to provide free primary education for such children. Having considered a large volume of documentary evidence as well as oral evidence on the approaches 73 74 75

O’Donoghue v Minister for Health [1996] 2 IR 20. For more on these provisions, see Chapter 4. Ryan v Attorney General [1965] IESC 1, para 37.

244 Proceed With Caution? adopted to the education of such children in numerous other jurisdictions, he stated that the evidence in the case gave rise to a strong conviction that, in order for primary education to meet the special needs of such people, a new approach would be required in respect of the pupil-teacher ratio, the age of commencement and continuity and duration of education. It would certainly be highly problematic if a court’s order founded on a more limited obligation (based on a more limited understanding of the scope of the right to education for disabled children) should serve to ‘limit’ the actions which the state can and should perform to bring about the vindication of the more extensive obligation. This should not, however, be the case in practice. Where the constitutional obligations of the state alter, so too do the measures that the state must take in order to remain consistent with its constitutional duties. A court order based on a previously-identified narrower obligation cannot serve as a barrier to the state going beyond what is specified by the court as necessary to give effect to a more extensive obligation. JUDICIAL ENFORCEMENT OF CHILDREN’S SOCIO-ECONOMIC RIGHTS: SERVING SOME CHILDREN WHILE DISADVANTAGING OTHERS?

The final part of this chapter centres on the implications of socio-economic rights adjudication on the rights of non-litigating children. When a court requires the amendment of a policy as part of its decision, the immediate, direct impact on that specific policy is likely to be clear. However, as highlighted in Chapter 5, the indirect effects of a judicial decision may be much more wide-ranging and, indeed, may take some time to play out. Evaluating the full impact of socio-economic rights adjudication upon socio-economic rights-related policy is challenging for a range of reasons. These include the difficulty of defining how one should evaluate the impact of judgments, a fact that is attributable to the relatively underdeveloped nature of indicators for measuring such. Indeed, even where such indicators have been developed, inadequate information may exist to allow those indicators to be employed effectively. In the Brazilian context, for instance, Ferraz has bemoaned the fact that the government does not release information on either the cost incurred to the state through compliance with judicial orders involving the right to health, or disaggregated data on the object of the claims.76 This is despite the very high levels of right to health litigation in that jurisdiction. At least in Brazil, there is an existing (albeit small) body of academic and other empirical research on this issue. In contrast, Abramovich and Paulassi writing from the Argentinean perspective 76

Ferraz, above n 31, 3.

Serving Some Children While Disadvantaging Others 245 have highlighted that, as of 2008, there were no empirical studies at all on the impact of judicial decisions involving the right to health on sectoral policies.77 Again, this was despite a significant amount of case law involving that right. The situation in Argentina and Brazil is illustrative of a broader international dearth of information on the wide-scale implications of socioeconomic rights adjudication. While the research in this area is growing, its current nascent state makes drawing firm conclusions in relation to the policy and social outcomes of the judicial enforcement of socio-economic rights, including those of children, very difficult. The issue of polycentric decision-making has already been addressed in Chapter 5. There, I highlighted the need for the courts to accord a broader margin of discretion to the state, as well as to employ a measure of remedial flexibility when dealing with polycentric issues. Indeed, it is vital that, when dealing with socio-economic rights issues, courts bear in mind the implications of their rulings on the overall state schema for giving effect to children’s socio-economic rights, including the policy and budgetary implications of their rulings.78 This is necessary in order to ensure that such litigation does not have a regressive effect of the distribution of socioeconomic rights-related goods.79 As highlighted in the previous chapter, a major preoccupation amongst those who express concern about the judicial enforcement of socio-economic rights is the implications that such decisions may have for the resources available to the state. Indeed, socio-economic rights adjudication is frequently presented or conceptualised as involving the claims of ‘sharp elbowed’ litigants being pitted against the claims of all other needy persons80 in the context of a limited budgetary pot. The logic of such an argument is that while the judicial enforcement of children’s socio-economic rights will serve to benefit some children, it will inevitably result in the disadvantaging of other needy persons. As is clear from Chapter 5, I am not arguing that socio-economic rights adjudication does not have potentially serious resource implications. 77 V Abramovich and L Pautassi, ‘Judicial Activism in the Argentine Health System: Recent Trends’ (2008) 10(2) Health and Human Rights 53, 54. 78 The question of the impact of a ruling on the enjoyment of rights by others (as opposed to on the budget generally) is unlikely to be considered an issue with regard to judgments with financial implications involving civil and political rights. Thus, it is arguable that it should not be regarded as such where the rights at issue are socio-economic in nature. However, given that the vindication of positive obligations imposed by socio-economic rights will frequently have a greater impact on the distribution of resources than will the financial implications of decisions involving civil and political rights, this matter must be addressed. 79 For more on the risk of socio-economic rights litigation and adjudication resulting in the exacerbation of existing inequality, see, eg Brinks and Gauri, above n 30. 80 See, eg O Ferraz, ‘Between Usurpation and Abdication: The Right to Health in the Courts of Brazil and South Africa’, www.ssrn.com/abstract=1458299, 15–16; S Kalmanovitz, ‘Las Consecuencias Económicas de los Fallos de la Corte Constitucional’ (1999) Economia Colombiana y Coyuntura Política (November) 124, 125.

246 Proceed With Caution? Nor am I suggesting that the judicial enforcement of children’s socioeconomic rights may not lead to a diminution in the level of rights enjoyment of other children resulting from the state response to such. Given this book’s focus on the rights of children in particular, it is important to outline why such judicial activity should not have such an impact, even though it may do so in practice. The argument made in this section is primarily based on international socio-economic rights law, specifically the ICESCR and the CRC. It focusses particularly on the obligations imposed on states parties by international law to respect children’s socio-economic rights and to ensure the progressive realisation of socio-economic rights. In doing so, I challenge the notion that such reallocation is an inevitable result of decisions in which the court enforces the positive obligations imposed by children’s socio-economic rights. While my argument focusses on the impact of child socio-economic rights adjudication on the rights enjoyment of other children, elements of it also apply to other potential ‘losers’ in the context of state responses to such adjudication. In practice, government efforts to give effect to a court’s order to vindicate the socio-economic rights of the children whose rights are the subject of that order (CRSO) are certainly likely to involve the reallocation of resources. This may include the withdrawal of resources from other groups of disadvantaged children (ODC) in the form of a reduction or elimination of benefits, programmes or services for those children. Such a withdrawal will have a negative impact on the level of enjoyment of socio-economic rights of the ODC. One might try to bypass this issue by arguing that the efficacy of the judicial enforcement of children’s socio-economic rights should only be measured in terms of the extent to which it brings about the enforcement or realisation of the rights of children that are at issue before the courts. However, such an approach would not counteract the fact that, where such judicial activity results in a diminution in the level of enjoyment of socio-economic rights of disadvantaged children other than the plaintiffs, the desirability of such activity must be called into question. One might assert that it is objectionable that those children whose rights are the subject of litigation may improve their own situation to the detriment of other children and courts should bear this in mind in their treatment of such cases. However, the state is obliged to vindicate the socio-economic rights of all children. Thus, it is only in limited circumstances that the state would be able to justify its decision to ‘reallocate’ resources away from some socio-economically disadvantaged children in order to guarantee the rights of others. While much of the analysis in this book has tended to focus on the positive obligations imposed by socio-economic rights, in these situations it is arguable that the negative obligations are of primary importance. The negative aspect of socio-economic rights requires the government to respect the socio-economic rights of children. The duty to respect obliges states to refrain from interfering with the enjoyment of economic, social

Serving Some Children While Disadvantaging Others 247 and cultural rights.81 This suggests that any action by the state that would diminish children’s existing enjoyment of socio-economic rights is suspect in terms of violating the obligation imposed on it by socio-economic rights, unless it could be justified under the limitations on such rights. Article 2(1) ICESCR requires states to ‘progressively achieve the realisation of’ (or ‘progressively realise’) socio-economic rights to the maximum extent of their available resources.82 It has been suggested in the context of implementation of the CRC that resources may be economic, human or organisational in nature.83 Furthermore, the obligation to use the ‘maximum of available resources’ refers to the real resources (for example, human, organisational and scientific resources) available within the country in question and extends beyond those over which the state has direct 81 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22–26 January 1997, published in (1998) 20 Human Rights Quarterly 691, para 6. 82 Article 2(1) ICESCR states that: ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures’. According to the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/CN.4/1987/17, Annex, ‘[t]he obligation “to achieve progressively the full realisation of the rights” requires states parties to move as expeditiously as possible towards the realisation of the rights’ (para 21). In addition, ‘[t]he obligation of progressive achievement exists independently of the increase in resources; it requires effective use of resources available. Progressive implementation can be effected not only by increasing resources, but also by the development of societal resources necessary for the realisation by everyone of the rights recognised in the Covenant’ (ibid paras 23–24). The CRC requires that states parties undertake all appropriate legislative, administrative and other measures for the implement of the rights set out in the CRC. With regard to economic, social, and cultural rights, states parties must undertake such measures ‘to the maximum extent of their available resources and within the framework of international cooperation’ (Art 4 CRC). The approach of the ComESCR to ‘the maximum available resources’ is applicable to the interpretation of Art 4 CRC (R Hodgkins and P Newell, Implementation Handbook for the Convention on the Rights of the Child (New York, UNICEF, 1998). In addition, Arts 24 and 28 CRC on the rights to health and education, respectively, refer to the obligations of states to progressively achieve these rights. In its General Comment No 5, above n 2, the ComRC stated that: ‘The second sentence of Article 4 reflects a realistic acceptance that lack of resources—financial and other resources—can hamper the full implementation of economic social and cultural rights in some States’ and that this introduces the concept of ‘progressive implementation’ of such rights (at para 7). The Committee has also made it clear that the obligation on states to implement ‘to the maximum of their available resources’ requires states to demonstrate that they have done so and, where necessary, have sought international cooperation (ibid). Whatever their economic circumstances, states are required to take all possible measures towards the realisation of the rights of the child, paying particular attention to the most disadvantaged groups (ibid para 8). 83 D Parker, ‘Resources and Child Rights: An Economic Perspective’ in J Himes (ed), Implementing the Convention on the Rights of the Child: Resource Mobilization in LowIncome Countries (UNICEF International Child Development Centre and Martinus Nijhoff, 1995) 35–37 (cited in Hodgkins and Newell, above n 82, 56). See also R Robertson, ‘Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realizing Economic, Social and Cultural Rights’ (1994) 16 Human Rights Quarterly 693, 695–97.

248 Proceed With Caution? control, to include sources such as development aid.84 Crucially for the purposes of my argument below, existing governmental allocations are not automatically authoritative in terms of determining what the maximum available resources for socio-economic rights realisation are.85 General Comment No 3 of the UN Committee on Economic, Social and Cultural Rights (ComESCR) states that the concept of ‘progressive realisation’ imposes an obligation on states to move as expeditiously and effectively as possible towards the goal of the full realisation of the socio-economic rights set out in that instrument.86 Scott and Macklem have observed that the Committee has indicated that this concept does not simply refer to the fact that fulfilment of a right must be pursued as expeditiously and effectively as possible, but that it also creates a kind of ratchet effect, in that lowering the fulfilment level of a right is presumptively prohibited once that level has been achieved.87 The ComESCR has asserted that any deliberately retrogressive measures in regard to the realisation of socio-economic rights would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the ICESCR and in the context of the full use of the maximum available resources.88 The withdrawal of resources from one disadvantaged group by the government in response to a judgment such as would reduce that group’s level of enjoyment of their socio-economic rights may qualify as a deliberately retrogressive measure, where it is the result of deliberate policy.89 Thus, where 84 Robertson, above n 83, 699. The ComESCR has noted that the phrase ‘to the maximum of its available resources’ was intended by the drafters of the ICESCR to refer to ‘both the resources existing within a State and those available from the international community through international cooperation and assistance’ (General Comment No 3 on the Nature of States Parties Obligations (art 2(1)), UN Doc E/1991/23 (1990) para 13). 85 P Alston and G Quinn, ‘States Parties’ Obligations under ICESCR’ (1987) 9 Human Rights Quarterly 156, 178. 86 ComESCR General Comment No 3, above n 84, para 9. In the same General Comment, the ComESCR stated that: ‘The principal obligation of result reflected in Article 2(1) is to take steps “with a view to achieving progressively the full realization of the rights recognised” in the Covenant. The term “progressive realization” is often used to describe the intent of this phrase’. 87 C Scott and P Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141 University of Pennsylvania Law Review 1, 80. 88 ComESCR General Comment No 3, above n 84, para 9. ‘Retrogressive measures might include the formal removal or suspension of legislation necessary for the continued enjoyment of an economic, social and cultural right that is currently enjoyed; the adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations relating to these rights, unless it is done with the purpose and effect of increasing equality and improving the realisation of economic, social and cultural rights for the most vulnerable groups; and the adoption of any other deliberately retrogressive measure that reduces the extent to which any such right is guaranteed’ (M Langford and A Nolan, Litigating Economic, Social and Cultural Rights: A Legal Practitioners’ Dossier (Centre on Housing Rights and Evictions, Geneva, 2006) 33. 89 For more on retrogressive measures in the context of budgetary decision-making on socio-economic rights, see A Nolan and M Dutschke, ‘Article 2(1) ICESCR and States Parties Obligations: Whither the Budget?’ (2010) 3 European Human Rights Law Review 278.

Serving Some Children While Disadvantaging Others 249 the government decides to withdraw resources from a group (for instance, ODC) which will have a retrogressive impact on their enjoyment of their socio-economic rights, it must be able to justify such activity by reference to other rights provided in the ICESCR, as well as to be able to demonstrate that such an action was truly necessary in light of the overall resources available to the state.90 The state will also have the burden of proving that this retrogressive measure was taken after the most careful consideration of all alternatives.91 Of course, instances of retrogression might be justified on the basis that they are necessary in order to ensure the full realisation of all children’s rights or the full realisation of the rights of all members of society. They might also be defensible on the grounds that they are necessary to ensure equality of enjoyment of socio-economic rights. The key question is whether the state would be able to establish that any of these justifications operate in a situation where the state withdraws resources from one set of vulnerable children in order to satisfy a court order in relation to another set, considering the vulnerability of the ODC. General Comment No 3 appears to prohibit only those retrogressive measures that are ‘deliberate’ and that cannot be justified. However, even in the absence of intentionally retrogressive measures, it is arguable that the diminished enjoyment of socio-economic rights by ODC caused by the diversion of resources by a state may amount to a violation of Article 2(1) ICESCR. This might occur where the government cannot show that its failure to take the additional steps necessary to ensure that reversal or non-progression of realisation of ODC’s rights does not occur is due to a lack of resources. The ComESCR has not addressed the issue of retrogressive measures in any detail and the scope of the obligation is far from being clear. In highlighting the budgetary implications of Article 2(1), Dutschke and I have argued elsewhere that: [The prohibition on retrogressive measures] includes unjustified reductions in public expenditure devoted to the implementation to ESR in the absence of adequate compensatory measures for the protection of injured individuals. Various examples of retrogressive measures have been identified by the Committee in its consideration of state reports submitted under ICESCR. These range from the steady decline in expenditure on the health care system in Algeria, to budgetary

90 Craven points out that the ComESCR seem to envisage two forms of justification: ‘[f]irst, where the State is suffering an economic crisis such that, even by utilizing “the maximum of available resources”, a deterioration of the situation is inevitable. Secondly, where a retrogressive measure is taken for the purpose of improving the situation with regard to “the totality of the rights in the Covenant”’ (M Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford, Oxford University Press, 1995) 132. 91 ComESCR General Comment No 13 on the Right to Education (art 13), UN Doc E/2000/22 (1999) para 45.

250 Proceed With Caution? cutbacks in the educational sector in Senegal, to the successive restrictions on social security benefits introduced by Canada. (citations removed)92

Thus far, however, the Committee has not directly addressed the issue of state withdrawal of resources from socio-economic rights realisation on the basis of a court order. According to Article 4 ICESCR, states parties may only subject the rights set out in that instrument to such limitations ‘as are determined by law’ and ‘only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’. Leckie has argued that any deliberately retrogressive measure (which would include the withdrawal of resources from ODC in order to vindicate the rights of CRSO) would limit the enjoyment of rights found in the ICESCR and thus require justification with due regard for the limitations provisions of Article 4.93 However, in the context of differentiating between Article 2(1) and Article 4 it has been suggested that there is a distinction between formal limitations of rights, on the one hand, and ‘a general level of attainment’ of those rights, on the other.94 If one accepts that the latter is just a reflection of resource availability, then it seems probable that a resource-motivated reduction in the level of enjoyment/attainment of a particular right would not constitute a ‘limitation’ in terms of Article 4.95 Furthermore, it is extremely unlikely that states parties may permissibly adopt a course of action (or inaction), in response to a judicial decision that will result in a failure to ensure the satisfaction of the minimum essential levels of socio-economic rights of ODC (ie the state’s minimum core obligation). The risk of this occurring is particularly high where the ODC are so disadvantaged that their enjoyment of socio-economic rights is at a level with, or only just above, the minimum essential level of a particular socioeconomic right that the state is obliged to ensure under the ‘minimum core obligation’ concept. The only situation in which it would be open to the state to take an action that would result in the minimum core not being guaranteed to the ODC would be where, in attempting to justify such failure on a lack of available resources, it can demonstrate that every effort has been made to use all resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations.96 In addition, the ComESCR has pointed out that, even where available resources are demonstrably 92

Nolan and Dutschke, above n 89, 285. S Leckie, ‘Another Step Towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights’ (1998) 20 Human Rights Quarterly 81, 98. 94 UN Doc A/2929 (1955), cited in P Alston and G Quinn, ‘The Nature and Scope of State Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 156, 205. 95 Ibid. 96 ComESCR General Comment No 3, above n 84, para 10. 93

Serving Some Children While Disadvantaging Others 251 inadequate, the obligation remains for a state party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances.97 The state would also have to satisfy this condition when giving effect to a judgment in which the courts enforce children’s socio-economic rights, in order to ensure that it met its obligations under the ICESCR. There is another principle that may play a role with regard to the ability of the state to divert resources from one group of children to another in the scenario under consideration. Article 3(1) CRC states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Thus, every legislative, administrative and judicial body or institution is required to apply the best interests principle by systematically considering how children’s rights and interests are or will be affected by their decisions and actions (by, for example, a proposed or existing law or policy or administrative action or court decision).98 The reference to ‘all actions’ is broad enough to encompass all state agencies and includes both action and inaction,99 while the UN Committee on the Rights of the Child (ComRC) has highlighted that ‘[t]he extension of the obligation to “legislative bodies” clearly indicates that every law, regulation or rule that affects children must be guided by the “best interests” criterion’.100 Article 3(1) CRC would definitely apply to an action by the government resulting in the withdrawal of resources from ODC in order to meet its constitutional obligations to CRSO. An interesting example of a court requiring the state to take children’s rights and interests (albeit not their ‘best interests’) into account in their budgetary decision-making is the German Federal Constitutional Court’s decision in the ‘Hartz IV’ case.101 The German Basic Law guarantees an ‘Existenzminimum’ which loosely refers to a minimum benefit that provides the means to live with basic human dignity. In this instance, the court was called upon to scrutinise the process by which the legislature set the level of unemployment and welfare assistance. The court ruled that the manner in which the country’s welfare law was calculated did not meet constitutional muster. Importantly, the court found that the method used to

97

Ibid para 11. ComRC, General Comment No 5, above n 2, para 12. 99 G Van Bueren, The International Law on the Rights of the Child (London, Martinus Nijhoff, 1998) 46. For more on the meaning of the phrase ‘all actions concerning children’ see P Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ in P Alston (ed), In the Best Interests of the Child: Reconciling Human Rights and Culture (Oxford, Clarendon Press, 1994) 1, 13–15. 100 ComRC, General Comment No 12 on the Right of the Child to be Heard, UN Doc CRC/C/GC/12 (2009) para 44. 101 1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09 9 February 2010. 98

252 Proceed With Caution? evaluate the income and consumption levels of low-income households was not legitimate and was not based on sound empirical data. Amongst other things, certain expenditure line items were reduced without a legitimate, statistical evaluation. The court also highlighted, in relation to children, that the law-makers had avoided any substantive evaluation of childspecific rights or needs. The law-makers were ordered to recalculate the level of benefits using sound statistical evidence of what is needed for a basic, dignified existence. 102 Of course, the best interests principle also extends to judicial decisions involving children’s socio-economic rights. It seems likely that courts focussing on specific litigants’ claims will be more concerned with the best interests of that specific group of children. That is not to say, however, that courts should be oblivious to the impact of their decisions on other children. In practice, the principle requires the courts to be sensitive to the impact of their decisions upon the best interests of other children that do not appear before them. The best interests principle has been criticised for its indeterminacy.103 However, this criticism is less significant in the context of the CRC or a national constitution that contains an extensive list of rights. This is because Convention or constitutional rights may be used as signposts by which the best interests of the child may be identified.104 Thus, where the state implements judicial decisions, the ‘interests’ of children that they must take into account include socio-economic rights-related interests. Furthermore, even where a national constitution does not include such an exhaustive list of rights, the CRC itself may provide guidance to decision-makers. With regard to differentiating between ‘best interests’ and ‘interests’ of a lower order, Alston has observed that the rights set out in the CRC may serve as a starting point in distinguishing primary interests (in the form of rights) from other types of interests.105 The same is presumably true of the rights provisions of a constitution. Indeed, the rights set out in the CRC (or a national constitution) may serve to provide the broad ethical framework that would give a greater degree of certainty to the content of the principle.106 The text of Article 3(1) raises the question of whether the best interests at issue are those of the child in particular or children in general. Parker has suggested that it is hard to see how Article 3(1) can have anything other

102

Facts taken from Nolan and Dutschke, above n 89, 288. See, eg Mnookin, above n 29, 17–18. For a discussion and rebuttal/qualification of the alleged indeterminacy of the ‘best interests’ standard, see S Parker, ‘The Best Interests of the Child: Principles and Problems’ in P Alston (ed), In the Best Interests of the Child: Reconciling Human Rights and Culture (Oxford, Clarendon Press, 1994) 26. 104 Van Bueren, above n 99, 48. 105 Alston, above n 99, 11–12. 106 P Alston, ‘The Legal Framework of the Convention on the Rights of the Child’ (1992) 91(2) Bulletin of Human Rights 1, 8. 103

Serving Some Children While Disadvantaging Others 253 than a collective focus. While such a view is not shared by the ComRC,107 in the scenario under discussion we are primarily concerned with the interests of children in general. Another question that arises as a result of the wording of Article 3(1) is what happens if there is a clash between the interests of a child in particular and of children in general, or between different groups of children? It would be inaccurate, in my view, to perceive the situation at issue as involving a clash between the interests of one group of children and those of another group. To view it as such would be to presume that there is only one way in which the government can acquire the resources necessary to give effect to the court’s ruling; that is, by taking an action concerning ODC that does not take their best interests as a primary consideration. To argue that resources are only available to the government from one specific source is inconsistent with the reality of budgeting and resource allocation. Thus, it seems reasonable in this case to conclude that the only ‘best interests’ involved are those of the ODC. The ComRC has made it clear that the government is required to take children’s best interests into account in relation to economic and social planning and decision-making as well as budgetary decisions.108 Furthermore, the impact of economic adjustment policies and budgetary cuts must be considered in light of that principle. Obviously, the best interests of the child will not always be the single overriding factor to be considered and Article 3(1) CRC does not establish an absolute priority for children.109 The formulation of the principle makes it clear, however, that there would a burden of proof on those seeking to follow an approach which does not favour children’s interests to demonstrate that, under the circumstances, no other acceptable alternative exists110 (in this case, that the resources necessary to vindicate the CRSO’s rights cannot be found elsewhere). The government is obliged to realise the rights of all children, whether on an immediate or progressive basis. The court’s primary duty is to ensure that the constitution, including children’s constitutional socio-economic rights, 107 Parker, above n 103, 28. In its General Comment No 12, above n 100, the ComRC stated that, ‘Article 3 is devoted to individual cases, but, explicitly, also requires that the best interests of children as a group are considered in all actions concerning children. States parties are consequently under an obligation to consider not only the individual situation of each child when identifying their best interests, but also the interests of children as a group ... [t]here is no doubt that the best interests of children as a defined group have to be established in the same way as when weighing individual interests. If the best interests of large numbers of children are at stake, heads of institutions, authorities, or governmental bodies should also provide opportunities to hear the concerned children from such undefined groups and to give their views due weight when they plan actions, including legislative decisions, which directly or indirectly affect children’ (paras 44–45). 108 See ComRC General Comment No 5, above n 2, para 51. 109 See P Alston and C Scott, ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise’ (2000) 16 South African Journal on Human Rights 206, 259. 110 Alston, above n 106, 9.

254 Proceed With Caution? is upheld. The risk that the state may choose (rather than be required to do so by the terms of the court order or by a lack of resource constraints) to violate its obligations to ODC seems an unacceptable ground for a court to refuse to intervene where such is necessary to ensure the vindication of the constitutional socio-economic rights of children before them. In practice, the choice of remedy employed by the court may operate to reduce the likelihood that a judicial decision involving children’s socio-economic rights will simply result in a state transfer of resources from one group of needy persons to another. If, as discussed in Chapter 5, the courts engage in a dialogic form of review and opt for remedies in the form of, for example, a structural interdict, the duty will fall, from the point at which a violation is found, on the elected branches of government to balance all competing interests in formulating a response.111 By affording the state the opportunity to factor in the rights-related needs of other rights-holders when formulating a response to a finding of unconstitutionality, such a remedial approach may operate to reduce the likelihood that the judicial enforcement of children’s socio-economic rights will result in the rights of one disadvantaged group being privileged over that of another. Ultimately, were the state to take measures in implementing the court’s ruling that resulted in the diminution of the levels of enjoyment of the socio-economic rights of disadvantaged children (other than those whose rights were at issue before the court), it would probably be in breach of its obligations to those children and, as a consequence, such children could take a case before the court themselves. Obviously, ODC will not always be in a position to bring a case and one might argue that having litigation be the deciding factor in the underlying societal competition for resources serves to privilege certain children over others simply on the basis of their access to the courts. This is undoubtedly true to some extent. However, this argument is again premised on the notion that disadvantaged groups of children are in competition over the same finite resources and that one group’s victory will inevitably be the other group’s loss. I have argued above that this should not be, and is not, necessarily the case. The issue of polycentricity and the potentially uneven impact of children’s socio-economic rights adjudication was considered by the South African Transvaal High Court in a decision centring on the appalling physical conditions and lack of services experienced by children in a school of industry.112 Here, the applicants had proposed the immediate provision of sleeping bags to the children. For its part, the state argued that ‘the provision of sleeping bags at the school would amount to inequality,

111

I am grateful to Paul O’Connell for bringing this point to my attention. The Centre for Child Law v MEC for Education, Gauteng 2008 (1) SA 223 (T). For further discussion of this case, see Chapter 5, n 66. 112

Conclusion 255 by favouring those children above others at similar institutions’.113 In its decision, the court stated that: Insofar as polycentric issues may arise from the courts becoming involved in budgetary or distribution matters, our Constitution recognises, particularly in relation to children’s rights and the rights to a fair trial, that budgetary implications ought not to compromise the justiciability of the rights. Each case must be looked at on its own merits, with proper consideration of the circumstances and the potential for negative or irreconcilable resource allocations ... The equality argument equally holds no water. It can never be a defence to a violation of constitutional rights to argue with qualification that the remedy should not be granted, lest others similarly denied their rights should seek the same remedy at significant cost to the state.114

The court highlighted that the costs or budgetary allocation problems in this instance were minimal and were far outweighed by the urgent need to advance the children’s interests in accordance with constitutional values: while levelling down may have its place when considering remedies for infringements of rights with pecuniary consequences, in cases such as the present, where the fundamental right to dignity is central, and where the costs are foreseeable, manageable and containable, levelling up is the appropriate and desirable remedy.115

This thoughtful analysis serves as a useful starting point for any court faced with matters requiring the resolution of polycentric decisions involving the positive obligations imposed by children’s socio-economic rights. CONCLUSION

This chapter and Chapter 5 have highlighted some of the principal issues arising in relation to the efficacy (or not) of judicial efforts to ensure the realisation of children’s socio-economic rights, including factors that play a key role in terms of whether or not such activity results in those rights being given effect to, whether for those children whose rights are the direct subject of litigation or for children more broadly. It remains to highlight one key question that must be addressed when considering whether or not it is desirable for the courts to play a role in enforcing children’s socio-economic rights: where the courts act to enforce children’s socio-economic rights, do they ultimately serve to disempower children? There are a number of aspects to such a claim. First, the litigation and adjudication processes involve adults mediating and making

113 114 115

Ibid. Ibid. Ibid.

256 Proceed With Caution? determinations about children’s rights claims. At the most basic level, the judicial enforcement of children’s rights primarily involves adults (judges) accepting or rejecting other adults’ (lawyers, parents, other representatives) perceptions of children’s rights issues. As highlighted above, children do not generally play a determinative role, either in terms of bringing cases or the decision-making vis-à-vis such. Thus, the judicial enforcement of children’s socio-economic rights arguably merely serves to undermine and perpetuate children’s passivity. Furthermore, where children do not play a significant role with regard to adjudication, there is a significant risk that the perpetuation of particular societal and judicial perceptions of children (or particular groups of children) will result, with children being accorded only very limited opportunities (if any) to check those perceptions. This is an issue that requires further consideration by a range of different actors considering the responsiveness (or not) to, and the role of the courts in enforcing, the rights claims of particular groups. For instance, there is growing awareness of the importance of ensuring diversity among judges, with a consequent variety of experience, to increase their representativeness and hence the perceived legitimacy of their decision-making. Such discussions have not, however, extended to the question of the exclusion of children from adjudicative decision-making. (I am not arguing here that children necessarily should sit on the bench. Rather, my aim is simply to highlight that conceptions of a ‘diverse’ bench do not necessarily take issues of younger age into account.) This chapter and the preceding one have argued that the judicial enforcement of children’s socio-economic rights can prove efficacious in terms of bringing about the realisation of children’s rights. However, it is important to recognise that the shortcomings that arise in relation to child representation and participation in the context of legislative and executive decisionmaking processes about children’s rights, are reflected, to at least some degree, in circumstances in which the courts serve as decision-makers. This must be borne in mind by those, including myself, who argue in favour of the courts adopting a proactive role towards the enforcement of children’s socio-economic rights.

7 Conclusions

I

N CONSIDERING THE circumstances in which the courts can or should give effect to the constitutional socio-economic rights of children, this book has addressed two central questions. First, is it legitimate for the courts to enforce children’s rights in the context of a liberal constitutional democracy? Secondly, is such activity efficacious in terms of ensuring the enforcement or realisation of children’s socio-economic rights? The first question was addressed in the opening four chapters of the book. In Chapter 1, I set out and rebutted flawed presumptions about the nature of socio-economic rights that have been employed by commentators to challenge the legitimacy of the courts’ dealing with such rights. I also outlined the particular situation of children as a social minority group with regard to socio-economic rights. Chapter 2 centred on the child as ‘democratic citizen’, highlighting that children’s exclusion from democratic decision-making processes, combined with their inability to depend successfully on others to protect and advance their interests, results in the denial of their effective participation and representation in those processes. In the course of the next two chapters I made the case that, in light of children’s effective location ‘outside’ democracy, neither the ‘countermajoritarian’ objection nor the ‘separation of powers’ doctrine can serve as an absolute barrier to the judicial enforcement of their socio-economic rights. In doing so, I argued that an unqualified application of the countermajoritarian objection to the courts enforcing children’s socio-economic rights may result in children’s claims to provision and protection by society being rendered meaningless, with children failing to benefit from the respect and protection that theorists claim are accorded to citizens under majoritarian conceptions of democracy. In Chapter 4, I considered the implications that the fact that courts are dealing with children’s socio-economic rights has, or should have, for their role as guardians of the constitution and their treatment of the separation of powers. I asserted that the judicial enforcement of children’s socio-economic rights is permissible either as (a) a legitimate aspect of the courts’ function as guardian of constitutional rights, which may, in some circumstances take precedence over their duty to enforce a strict separation of powers; or (b) as a legitimate aspect of the courts’ function under the separation of powers doctrine itself in the context of children’s socio-economic rights. A key element

258 Conclusions of Chapters 2 to 4 was a consideration of how the limited democratic citizenship enjoyed by children impacts on the parameters of legally legitimate judicial activity aimed at securing the enforcement of their rights. I then turned to the question: if the courts do seek to give effect to children’s socio-economic rights, when, and in what circumstances, will this work in practice? Chapter 5 centred on two principal lines of argument. First, I rebutted frequently-made claims about the alleged incapacity of the courts to deal with issues that may arise in the context of adjudication involving children’s socio-economic rights. This included addressing the thorny question of the implementation of judicial decisions. Secondly, I identified a number of elements that affect the likelihood of success where the courts seek to give effect to children’s socio-economic rights. I concluded that, where children’s socioeconomic rights are being violated and no other branch of government is taking effective action to implement them, then it cannot be argued convincingly that the courts will do the job so badly that it is better to let the breakdown continue rather than suffer judicial intervention as a last resort. Chapter 6 built on the analysis in the preceding chapter, discussing the challenges that arise in relation to employing the law and the courts to advance children’s socio-economic rights. In particular, I highlighted the issues that arise in relation to the participation and representation of children in the context of litigation and judicial decision-making. This entailed a recognition of the way in which legal processes and the courts can operate to reinforce the passivity of children, rather than recognising, advancing or giving effect to a conception of children as active rights-bearing social actors with agency. Other issues addressed include the partial nature of legal solutions in terms of remedying the origins of child socio-economic rights violations, as well as the risks posed to the effective realisation of children’s socio-economic rights and the obligations they impose by the form that specific judicial approaches towards such may take. I also argued for the unsustainability of the claim that, in enforcing the socio-economic rights of those children who appear before them, the courts will inevitably negatively impact upon other children’s enjoyment of socio-economic rights. The second part of the book is shorter than the first. This is perhaps unsurprising given the limited theoretical and empirical research that exists in relation to the efficacy of the judicial enforcement of socio-economic rights, and the socio-economic rights of children in particular. The same is true with regard to the employment of law and the courts to progress children’s rights. In practice, considerably more work remains to be done on the question of when judicial efforts to secure the realisation of children’s rights will bring about the desired result. This book constitutes a key step on the way towards the development of such a body of research but my conclusions in Chapters 5 and 6 are likely to evolve as more work (particularly that of an empirical nature) is done on this topic in the coming years.

Conclusions 259 So, what is my ultimate conclusion? As stated in the Foreword, this book does not argue that the judicial enforcement of children’s socio-economic rights is an unqualified ‘good’. It does not suggest that judicial intervention will operate as a panacea for all (or even most) of the challenges faced by children in their enjoyment of socio-economic rights. I do not assert that courts will inevitably respond to children and their rights claims appropriately or effectively. Rather, I have evaluated the arguments for and against judicial intervention to ensure such rights. In light of this, I have argued that there are instances in which the courts can—and indeed may be required to—enforce children’s socio-economic rights. There is no doubt, however, that judicial intervention will not be appropriate in all circumstances. The desirability of such activity will clearly be questionable in situations where it is apparent that the elected branches of government are making a serious effort to vindicate children’s rights; that is, where the non-realisation of such rights is not the result of legislative or executive animosity, indifference or inertia. Indeed, the strongest argument against the court’s adopting a proactive role with regard to the enforcement of children’s socio-economic rights is that these rights are already being adequately recognised, promoted and realised by the elected branches of government through the legislative or policy-making mechanisms. Where this is the case, there is likely to be little need, and even less justification, for judicial intervention. Where, however, the legislature and executive fail to fulfil their obligation to guarantee children’s constitutional socio-economic rights, it cannot be argued that there is no role for the courts to play, bearing in mind the courts’ duty to uphold constitutional rights. This book does not argue that the courts are the optimum branch of government for ensuring the vindication of children’s socio-economic rights, nor does it suggest that judicial intervention is the best means of bringing about the realisation of these rights. Rather, I have focussed on outlining and defending a role for the courts in situations where children’s socio-economic rights are not being vindicated by alternative, optimal (or at least more appropriate) means or institutions. Where children have constitutional socio-economic rights, these must be upheld by all branches of government. Where the legislature and executive fail to do so, the courts can—and indeed should—seek to secure these rights.

Select Bibliography BOOKS Alston, P, (ed), In the Best Interests of the Child: Reconciling Human Rights and Culture (Oxford: Clarendon Press, 1994) —— and Tomaševski, K, (eds), The Right to Food (Dordrecht: Martinus Nijhoff Publishers, 1984) Alston, P, Parker, S, and Seymour, J, (eds), Children, Rights and the Law (Oxford: Clarendon Press, 1992) Archard, D, Children, Family and the State (Aldershot: Ashgate, 2003) —— and Macleod, C, (eds), The Moral and Political Status of Children (Oxford: Oxford University Press, 2002) Ariès, P, Centuries of Childhood (London: Cape, 1962) Bajpai, A, Child Rights In India: Law Policy and Practice, 2nd edn (New Delhi: Oxford University Press, 2006) Bakan, J, and Schneiderman, D, (eds), Social Justice and the Constitution (Ottawa: Carleton University Press, 1992) 85 Bamforth, N, Malik, M, and O’Cinneide, C, Discrimination Law: Theory and Context – Text and Materials (London: Sweet & Maxwell, 2008) Barak-Erez, D, and Gross, A, (eds), Exploring Social Rights: Between Theory and Practice (Oxford: Hart Publishing, 2007) Bauman, R, and Kahana, T, (eds), The Least Examined Branch (New York: Cambridge University Press, 2006) Bickel, A, The Least Dangerous Branch – The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-Merrill, 1962) Bilchitz, D, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford; Oxford University Press, 2007) Binchy, W, and Sarkin, J, (eds), Human Rights, the Citizen and the State: South African and Irish Approaches (Dublin: Roundhall Sweet & Maxwell, 2001) Bossuyt, M, L’Interdiction de la Discrimination dans le Droit International des Droits de l’Homme (Brussels: Etablissements Emile Buylant, 1976) Brand, D, and Russell, S, (eds), Exploring the Core content of socio-economic rights: South African and international perspectives (Pretoria: Protea Book House, 2002) Breen, C, The Standard of the Best Interests of the Child – a Western Tradition in International and Comparative Law (The Hague: Martinus Nijhoff Publishers, 2002) —— Age Discrimination and Children’s Rights: Ensuring Equality and Acknowledging Difference (Dordrecht: Martinus Nijhoff Publishers, 2006) Brewer-Carías, A, Constitutional Protection of Human Rights in Latin America: A Comparative Study of Amparo Proceedings (New York: Cambridge University Press, 2009)

Select Bibliography 261 Byrne, R, and Binchy, W, Annual Review of Irish Law 2001 (Dublin: Round Hall Sweet & Maxwell, 2002) Carolan, E, The New Separation of Powers (Oxford: Oxford University Press, 2009) Chaskalson, M, and Spitz, R, The Politics of Transition: A Hidden History of South Africa’s Negotiated Settlement, (Oxford: Hart, 2000) Chaskalson, A, Kentridge, J, Klaaren, J, Marcus, G, Spitz, D, and Woolman S, (eds), Constitutional Law of South Africa (Cape Town: Juta, 1996) Cohen, E, Semi-Citizenship in Democratic Politics (New York: Cambridge University Press, 2009) Constitution Review Group, Report of the Constitution Review Group (Dublin: Stationery Office, 1996) Coomans, F, (ed), Justiciability of Economic and Social Rights, Experiences from Domestic Systems (Antwerpen/Oxford: Intersentia, 2006) Corder, H, and Du Plessis, L, Understanding South Africa’s Transitional Bill of Rights (Cape Town: Juta, 1994) Courtis, C, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (Geneva: ICJ, 2008) Cranston, M, What are Human Rights? (New York: Taplinger Publish Co, 1973) Craven, M, The International Covenant on Economic, Social and Cultural Rights – A Perspective on its Development (Oxford: Oxford University Press, 1995) Currie, I, and De Waal, J, The New Constitutional and Administrative Law – Volume 1, Administrative Law (Cape Town: Juta, 2001) Crotty, W, and Schmitt, D, (eds), Ireland and the Politics of Change (London: Longman, 1998) Dahl, R, On Democracy (Yale University Press: New Haven, 1998) Davel, C, (ed), Children’s Rights in a Transitional Society – Proceedings of a Conference hosted by the Centre for Child Law in Pretoria, 20 October 1998 (Pretoria: Protea Book House, 1999) Detrick, S, A Commentary on the United Nations Convention on the Rights of the Child (The Hague: London: Martinus Nijhoff Publishers 1999) Devenish, G, A Commentary on the South African Constitution (Durban: Butterworths, 1998) Doek, J, Shiva Kumar, A, Mugawe, D, and Tsegaye, S, (eds), Child Poverty: African and International Perspectives (Mortsel: Intersentia, 2009) Dworkin, R, Taking Rights Seriously (London: Duckworth, 1978) —— A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) —— Freedoms Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996) Eide, A, Krause, C, and Rosas, A, (eds), Economic, Social and Cultural Rights – A Textbook, Second Revised Edn (The Hague: Kluwer Law International, 2001) Eisgruber, C, Constitutional Self-Government (London: Harvard University Press, 2001) Ely, J, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980) Emberland, M, The Human Rights of Companies: Exploring the Structure of ECHR Provisions (Oxford: Oxford University Press, 2006)

262 Select Bibliography Fabre, C, Social Rights Under the Constitution – Government and the Decent Life (Oxford: Oxford University Press, 2000) Farson, R, Birthrights (New York: Macmillan, 1974) Feeley, M, and Rubin, E, Judicial Policy Making and the Modern State – How the Courts Reformed American’s Prisons (Cambridge: Cambridge University Press, 1999) Fionda, J, (ed), Legal Concepts of Childhood (Oxford: Hart Publishing 2001) Franklin, B, (ed), The New Handbook of Children’s Rights – Comparative Policy and Practice (London: Routledge, 2002) Fredman, S, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008) —— and Spencer, S, (eds), Age as an Equality Issue (Oxford, Hart Publishing, 2003) Freeman, M, The Moral Status of Children – Essays on the Rights of the Child (London: Kluwer Law International, 1997) Freeman, M, and Veerman, P, (eds), The Ideologies of Children’s Rights (Dordrecht: Martinus Nijhoff Publishers, 1991) Fried, B, Right and Wrong (Cambridge, MA: Harvard University Press, 1978) Gallagher, M, Marsh, M, and Mitchell, P, (eds), How Ireland Voted 2002 (London: Palgrave MacMillan, 2003) Gambitta, R, May, M, and Foster, J, (eds), Governing Through Courts (Beverley Hills, CA: Sage Publications, 1981) Gargarella, R, Domingo, P, and Roux, T, (eds), Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Aldershot: Ashgate, 2006) Gauri, V, and Brinks, D, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge: Cambridge University Press, 2008) Griffiths, M, and Whitford, M, Feminist Perspectives in Philosophy (London: Macmillan Press, 1988) Grubb, W, and Lazerson, M, Broken Promises: How Americans Fail Their Children (Chicago: University of Chicago Press, 1982) Gwyn, W, The Meaning of the Separation of Powers – An Analysis of the Doctrine from its Origin to the Adoption of the United States Constitution, Tulane Studies in Political Science, Volume IX, (New Orleans: Tulane University, 1965) 5. Hayes, N, Children’s Rights – Whose Right? A Review of Child Policy Development in Ireland (Dublin: The Policy Institute, 2002) Healy, S, and Reynolds, B, (eds), Social Policy in Ireland (Dublin: Oaktree Press, 1998) Hertel, S, and Minkler, L, (eds), Economic Rights: Conceptual, Measurement and Policy Issues (New York: Cambridge University Press, 2010) Hogan, G, and Whyte, G, (eds), J.M. Kelly: the Irish Constitution, 3rd edn (Dublin: Butterworths, 1994) —— (eds), J.M. Kelly: the Irish Constitution, 4th edn (Dublin: Butterworths, 2003) Hogan, G, and Morgan, D, Administrative Law in Ireland (Dublin: Sweet & Maxwell, 1998) Holmes, T, and Sunstein, C, The Cost of Rights: Why Liberty Depends on Taxes (New York: WW Norton, 1999)

Select Bibliography 263 Holt, J, Escape from Childhood (New York: Dutton, 1974) Horowitz, D, The Courts and Social Policy (Washington DC: Brookings, 1977) James, A, and Prout, A, Constructing and Reconstructing Childhood: Contemporary issues in the sociological study of childhood (London: Falmer Press, 1997) James, A, Jenks, C, and Prout, A, Theorising Childhood (Oxford: Polity Press, 1998) John, M, (ed), Children in Our Charge – The Child’s Right to Resources (London: Jessica Kingsley, 1996) —— Children’s Rights and Power: Charging Up for a New Century (London: Jessica Kingsley Productions, 2003) Keightley, R, (ed), Children’s Rights (Cape Town: Juta, 1996) Kennedy, D, A Critique of Adjudication-Fin De Siecle (Cambridge, MA: Harvard University Press, 1997) Kilkelly, U, The Child and The European Convention on Human Rights (Aldershot: Ashgate Dartmouth, 1999) Lance Bennett, W, (ed), Civic Life Online: Learning How Digital Media Can Engage Youth (Cambridge, MA: The MIT Press, 2008) Landman, T, and Carvalho, E, Measuring Human Rights (New York, Routledge, 2010) Langford, M, (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press, 2008) Liebenberg, S, Socio-Economic Rights: Adjudication under a Transformative Constitution (Cape Town: Juta 2010) Marion Young, I, Inclusion and Democracy (Oxford: Oxford University Press, 2000) Marshall, T, Sociology at the Crossroads (London: Heinemann, 1963) Mayall, B, (ed), Children’s Childhoods: Observed and Experienced (London: Falmer Press, 1994) McGillivray, A, (ed), Governing Childhood (Aldershot: Dartmouth, 1997) Mill, JS, ‘On Liberty’ and Other Essays, G Himmelfarb (ed), (London: Penguin Books, 1974) Minow, M, Making All the Difference – Inclusion, Exclusion and American Law (London: Cornell University Press, 1990) Minow, M, Ryan, M, and Sarat, A, (eds), Narrative, Violence and the Law: The Essays of Robert Cover (Ann Arbor: University of Michigan Press, 1992) Mnookin, R, In the Interest of Children – Advocacy, Law Reform, and Public Policy (New York: WH Freeman & Co, 1985) Montesquieu, C, L’Esprit des Loix, Cohler, Miller and Stone (eds), (Cambridge: Cambridge University Press, 1989) Morgan, D, The Separation of Powers in the Irish Constitution (Dublin: Roundhall & Maxwell, 1997) Ncube, W, (ed), Law, Culture and Children’s Rights in Eastern and Southern Africa (Aldershot: Dartmouth Publishing Company, 1998) Nussbaum, M, Sex and Social Justice (New York: Oxford University Press, 1999) Okin, S, Justice, Gender and the Family (New York: Basic Books, 1989). O’Connell, P, Vindicating Socio-Economic Rights: International Standards and Comparative Experiences (London: Routledge, forthcoming 2011) O’Neill, O, Constructions Reason: Explorations of Kant’s Practical Philosophy (Cambridge: Cambridge University Press, 1989)

264 Select Bibliography ——, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge: Cambridge University Press, 1996) O’Neill, O, and Ruddick, W, (eds), Having Children: Philosophical and Legal Reflections on Parenthood (New York: Oxford University Press, 1979) Palmer, E, Judicial Review, Socio-Economic Rights and the Human Rights Act (Oxford: Hart, 2007) Paris, M, Framing Equality Opportunity: Law and the Politics of School Finance Reform (Stanford: Stanford University Press, 2010) Patterson, J, Brown v Board of Education: A Civil Rights Milestone and Its Troubled Legacy (New York: Oxford University Press, 2001) Pennock, J, Democratic Political Theory (Princeton: Princeton University Press, 1979) Pitkin, H, The Concept of Representation (Berkeley: University of California Press, 1967) Pogge, T, (ed), Freedom from Poverty as a Human Right: Who Owes What to the Poor? (Oxford: UNESCO/Oxford University Press, 2007) Pollock, L, Forgotten Children: Parent-child relations from 1500 to 1900 (Cambridge, Cambridge University Press, 1988). Prout, A, The Future of Childhood: Towards the Interdisciplinary Study of Children (New York: RoutledgeFarmer, 2005) Przeworski, A, Stokes, S, and Manin, B, Democracy, Accountability and Representation (Cambridge, Cambridge University Press, 1999) Purdy, L, In Their Best Interest? The Case Against Equal Rights for Children (London: Cornell University Press, 1992) Raz, J, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) Ready, T, Edley, C, and Snow, C, et al (eds), Achieving High Educational Standards for All: Conference Summary (Washington: National Academy Press, 2002) Riker, W, Liberalism Against Populism (San Francisco: WH Freeman and Company, 1982) Roach, K, The Supreme Court on Trial – Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001) Rosenberg, G, The Hollow Hope: Can Courts Bring About Social Justice? 2nd edn (Chicago: University of Chicago Press, 2008) Rosenberg, G, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago, 1991) Sajó, A, Western Rights? Post-Communist Application (The Hague: Kluwer Law International, 1996) Sampford, C, and Galligan, D, (eds), Law, Rights and the Welfare State (London: Croom Helm, 1986) 22 Sarat, A, and Scheingold, S, (eds), Cause Lawyers and Social Movements (Stanford: Stanford Law and Press, 2006) Sathe, SP, Judicial Activism in India – Transcending Borders and Enforcing Limits (New Delhi: Oxford University Press, 2002) Scarre, G, (ed), Children, Parents and Politics (Cambridge: Cambridge University Press, 1989) Sen, A, Development As Freedom (Oxford: Oxford University Press, 1999)

Select Bibliography 265 Shatter, A, Shatter’s Family Law 4th edn (Butterworths: Dublin, 1997) Shue, H, Basic Rights: Subsistence, Affluence, and US Foreign Policy (Princeton: Princeton University Press, 1980) Skelton, A, Children and the Law (Pietermauritzburg: Lawyers for Human Rights, 1998) Sloth-Nielsen, J, Realising the Rights of Children Growing up in Child-headed Households – A Guide to Laws, Policies and Social Advocacy (Bellville: Community Law Centre, 2004) Smith, A, Gallop, M, Marshall, K, and Nair, K, (eds), Advocating for Children – International Perspectives on Children’s Rights (New Zealand: University of Otago Press, 2000) Squires, J, Langford, M, and Thiele, B, (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Sydney: University of New South Wales Press, 2005) Stephens, S, (ed), Children and the Politics of Culture (Princeton: Princeton University Press, 1995) Sunstein, C, The Partial Constitution (Cambridge: Cambridge University Press, 1993) ——, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (Cambridge, MA: Basic Books, 2004) Tamanaha, B, On The Rule of Law (Cambridge: Cambridge University Press, 2004) Tisdall, K, Davis, J, Hill, M and Prout, A, (eds), Children, Young People and Social Inclusion: Participation for What? (Bristol: The Policy Press, 2006) Tribe, L, Constitutional Choices (Cambridge, MA: Harvard University Press, 1985) —— American Constitutional Law 2nd edn (New York: Foundation, 1988) Tushnet, M, Weak Courts, Strong rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton: Princeton University Press, 2008) UNICEF (ed), Protecting the World’s Children (New York: Cambridge University Press, 2007) Van Bueren, G, The International Law on the Rights of the Child (London: Martinus Nijhoff, 1998) Van Wyk, D, Dugard, J, de Villiers, B, and Davis, D, (eds), Rights and Constitutionalism – The New South African Legal Order (Cape Town: Juta, 1994) Veerman, P, The Rights of the Child and the Changing Image of Childhood (Dordrecht: Martinus Nijhoff Publishers, 1992) Vile, M, Constitutionalism and the Separation of Powers (New York: Glencoe, 1967) Waldron, J, Liberal Rights – Collected Papers, 1981–91 (Cambridge: Cambridge University Press, 1993) —— Law and Disagreement (Oxford: Clarendon Press, 1999) Weissbrodt, D, The Human Rights of Non-citizens (New York: Oxford University Press, 2008) Wellman, C, Real Rights (New York: Oxford University Press, 1995) Whelan, A, (ed), Law and Liberty in Ireland (Dublin: Oaktree Press, 1993)

266 Select Bibliography Whyte, G, Social Inclusion and the Legal System – Public Interest Law in Ireland (Dublin: Institute of Public Administration, 2002) Woolman, S, Roux, T, and Bishop, M, (eds), Constitutional Law of South Africa 2nd edn (Cape Town: Juta, 2007) Wringe, C, Children’s Rights: A Philosophical Study (London and Boston: Routledge and Kegan Paul, 1981) Young, M, Boyd, S, Brodsky, G, and Day, S, (eds), Poverty: Rights, Social Citizenship, and Legal Activism (Toronto: UBC Press, 2007)

CHAPTERS IN BOOKS Alston, P, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’ in Alston (ed), In the Best Interests of the Child: Reconciling Human Rights and Culture (Oxford: Clarendon Press, 1994) 1 Arneil, B, ‘Becoming Versus Being: A Critical Analysis of the Child in Liberal Theory’ in Archard and Macleod (eds), The Moral and Political Status of Children (Oxford: Oxford University Press, 2002) 70 Bakan, J, ‘What’s wrong with Social Rights?’ in Bakan and Schneiderman (eds), Social Justice and the Constitution (Ottawa: Carleton University Press, 1992) 85 Bishop, M, ‘Remedies’ in Woolman, Roux and Bishop (eds), Constitutional Law of South Africa 2nd edn (Cape Town: Juta, 2007) 9-1 Blustein, J, ‘Child Rearing and Family Interests’ in O’Neill and Ruddick (eds), Having Children: Philosophical and Legal Reflections on Parenthood (New York: Oxford University Press, 1979) 115 Brems, E, ‘Indirect Protection of Social Rights by the European Court of Human Rights’ in Barak-Erez and Gross (eds), Exploring Social Rights: Between Theory and Practice (Oxford: Hart Publishing, 2007) 135 Brinks, D, and Gauri, V, ‘A New Policy Landscape: Legalised Social and Economic Rights in the Developing World’ in Gauri and Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge, 2008) 303 Chirwa, D, ‘The African Regional System: The promise of recent jurisprudence on social rights’ in Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press, 2008) 327 Courtis, C, ‘Judicial Enforcement of Social Rights: Perspectives form Latin America’ in Gargarella, Domingo and Roux (eds), Courts and Social Transformation in New Democracies (Aldershot: Ashgate, 2006) 169 Cover, R, ‘Origins of Judicial Activism in the Protection of Minorities in Minow, Ryan and Sarat (eds), Narrative, Violence and the Law: The Essays of Robert Cover (Ann Arbor: University of Michigan Press, 1992) 13 De Villiers, B, ‘Social and Economic Rights’ in Van Wyk et al (eds), Rights and Constitutionalism – The New South African Legal Order (Oxford: Clarendon Press, 1996) 599 Doek, J, ‘Child Poverty: An Overview’ in J Doek et al (eds), Child Poverty: African and International Perspectives (Mortsel: Intersentia, 2009) 3 Dugard, J, and Roux, T, ‘The Record of the South African Constitutional Court in Providing an Institutional Voice for the Poor: 1995–2004’ in Gargarella,

Select Bibliography 267 Domingo and Roux (eds), Courts and Social Transformation in New Democracies (Aldershot: Ashgate, 2006) 107 Duncan, W, ‘The Constitutional Protection of Parental Rights’ in Constitution Review Group, Report of the Constitution Review Group (Dublin: Stationery Office, 1996) 612 Fionda, J, ‘Legal Concepts of Childhood: An Introduction’ in Fionda (ed), Legal Concepts of Childhood (Oxford: Hart Publishing, 2001) 3 Flekkøy, MG ‘The Ombudsman for Children – Conception and Developments’ in Franklin (ed), The New Handbook of Children’s Rights – Comparative Policy and Practice (London: Routledge, 2002) 404. Franklin, B, ‘Children’s Rights and Media Wrongs: Changing Representations of Children and the Developing Rights Agenda’ in Franklin (ed), The New Handbook of Children’s Rights – Comparative Policy and Practice (London: Routledge, 2002) 15 Fredman, S, ‘The Age of Equality’ in Fredman and Spencer (eds), Age as an Equality Issue (Oxford: Hart Publishing, 2003) 21 Freeman, M ‘Children’s Rights: A Framework’ in Freeman (ed), The Rights and Wrongs of Children (London: Frances Pinter, 1983) 32 —— ‘The Limits of Children’s Rights’ in Freeman and Veerman (eds), The Ideologies of Children’s Rights (Dordrecht: Martinus Nijhoff Publishers, 1991) 29 —— ‘Taking Children’s Rights More Seriously’ in Alston, Parker and Seymour (eds), Children, Rights and the Law (Oxford: Clarendon Press, 1992) 52 —— ‘The Limits of Children’s Rights’ in M Freeman, The Moral Status of Children – Essays on the Rights of the Child (The Hague: Kluwer Law International, 1997) 83 Gallagher, M, ‘Stability and Turmoil: Analysis of the Results’ in Gallagher, Marsh and Mitchell (eds), How Ireland Voted (London: Palgrave MacMillan, 2003) 88 Gambitta, R, May, M, and Foster, J, ‘Introduction’ in Gambitta, May and Foster (eds), Governing Through Courts (Beverley Hills, CA: Sage Publications, 1981) 9 García Méndez, E, ‘A Comparative Study of the Impact of the Convention on the Rights of the Child: Law Reform in Selected Civil Law Countries’ in UNICEF (ed), Protecting the World’s Children (New York: Cambridge University Press, 2007) 100 Garry, J, Kennedy F, Marsh, M, and Sinnott, K, ‘What Decided the Election?’ in Gallagher, Marsh and Mitchell (eds), How Ireland Voted (London: Palgrave McMillan, 1981) 118 Gloppen, S, ‘Courts and Social Transformation: An Analytical Framework’ in Gargarella, Domingo and Roux (eds), Courts and Social Transformation in New Democracies (Aldershot: Ashgate, 2006) 35 Gonsalves, C, ‘Reflections on the Indian Experience’ in Squires, Langford and Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (University of New South Wales Press: Sydney, 2005) 177 Hardiman, N, ‘Inequality and the Representation of Interests’ in Crotty and Schmitt (eds), Ireland and the Politics of Change (London: Longman, 1998) 122 Hardin, R, ‘An Exact Epitome of the People’ in Bauman and Kahana (eds), The Least Examined Branch (New York: Cambridge University Press, 2006) 33 Hoffman, F, and Bentes, R, ‘Accountability for Social and Economic Rights in Brazil’ in Gauri and Brinks (eds), Courting Social Justice: Judicial Enforcement

268 Select Bibliography of Social and Economic Rights in the Developing World (New York: Cambridge, 2008) 100 Hogan, G, ‘Judicial Review and Socio-Economic Rights’ in Binchy and Sarkin (eds), Human Rights, the Citizen and the State: South African and Irish Approaches (Dublin: Roundhall Sweet & Maxwell, 2001) 1 Hughes, J, ‘The Philosopher’s Child’ in Griffiths and Whitford (eds), Feminist Perspectives in Philosophy (London: Macmillan Press, 1988) 72 Jordanova, L, ‘Children in History: Concepts of Nature and Society’ in Scarre (ed), Children, Parents and Politics (Cambridge: Cambridge University Press, 1989) 3 Khaliq, U, and Churchill, R, ‘The European Committee of Social rights’ in Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press, 2008) 428 King, M, ‘Against Children’s Rights’ in Keightley, R, (ed), Children’s Rights (Cape Town: Juta, 1996) 28 Liebenberg, S, ‘Socio-Economic Rights’ in Chaskalson et al (eds), Constitutional Law of South Africa (Cape Town: Juta, 1996) 41-1 —— ‘The Protection of Economic and Social Rights In Domestic Legal Systems’ in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights – A Textbook, Second Revised Edn (The Hague: Kluwer Law International, 2001) 55 Lister, R, Smith, N, Middleton, S, and Cox, L, ‘Young People and Citizenship’ in Tisdall et al (eds), Children, Young People and Social Inclusion: Participation for What? (Bristol: The Policy Press, 2006) 33 Lynch, K, ‘The Status of Children and Young Persons: Educational and Related Issues’ in Healy and Reynolds (eds), Social Policy in Ireland (Dublin: Oaktree Press, 1998) 321 Lyons, P, and Sinnott, R, ‘Voter Turnout in 2002 and Beyond’ in Gallagher, Marsh and Mitchell (eds), How Ireland Voted 2002 (London: Palgrave MacMillan, 2003) 142 MacLeod, C, ‘Liberal Equality and the Affective Family’ in Archard and Macleod (eds), The Moral and Political Status of Children (Oxford: Oxford University Press, 2002) 212 Mayall, B, ‘The Sociology of Childhood: Children’s Autonomy and Participation Rights’ in Smith, et al (eds), Advocating for Children – International Perspectives on Children’s Rights (Dunedin: University of Otago Press, 2000) 126 Melish, T, ‘The Inter-American Court of Human Rights: Beyond Progressivity’ in Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press, 2008) 388 Nolan, A, ‘Ireland: The Separation of Powers Doctrine vs Human Rights’ in Langford (ed) Social Rights Jurisprudence: Emerging Trends in Comparative and International Law (Cambridge: Cambridge University Press, 2009) 295 —— ‘Rising to the Challenge of Child Poverty: the Role of the Courts’ in Van Bueren (ed), Fulfilling Law’s Duty to the Poor (Pennsylvania: Pennsylvania University Press/UNESCO, forthcoming 2011) O’Neill, O, ‘Children’s Rights and Children’s Lives’ in Alston, Parker and Seymour (eds), Children, Rights and the Law (Oxford: Clarendon Press, 1992) 24 Oakley, A, ‘Women and Children First and Last: Parallels and Differences between Children’s and Women’s Studies’ in Mayall (ed), Children’s Childhoods: Observed and Experienced (London: Falmer Press, 1994) 13

Select Bibliography 269 Pantazis, A, and Mosikatsana, T, ‘Children’s Rights’ in Chaskalson et al (eds), Constitutional Law of South Africa (Cape Town: Juta, 1996) 33-1 Parker, S, ‘The Best Interests of the Child – Principles and Problems’ in Alston (ed) In the Best Interests of the Child: Reconciling Human Rights and Culture (Oxford: Clarendon Press, 1994) 26 Piovesan, F, ‘Brazil: Impact and Challenges of Social Rights in the Courts’ in Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (New York: Cambridge University Press, 2008)18 Plant, R, ‘Needs, Agency and Rights’ in Sampford and Galligan (eds), Law, Rights and the Welfare State (London: Croom Helm, 1986) 22 Pogge, T, ‘Introduction’ in Pogge (ed), Freedom from Poverty as a Human Right: Who Owes What to the Poor? (Oxford: UNESCO/Oxford University Press, 2007) 1 Rebell, M, ‘Educational Adequacy, Democracy and the Courts’ in Ready, Edley and Snow (eds), Achieving High Educational Standards for All: Conference Summary (Washington: National Academy Press, 2002) 218 Reinaldo de Lima Lopes, J, ‘Brazilian Courts and Social Rights: A Case Study Revisited’ in Gargarella, Domingo and Roux (eds), Courts and Social Transformation in New Democracies (Aldershot: Ashgate, 2006) 185 Renke, W, ‘Litigation and the Adversary System’ in University of Alberta Faculty of Law and Alberta Law Foundation (eds), Public Legal Education: A Guide to Canadian Law (Alberta: University of Alberta Faculty of Law and Alberta Law Foundation) Roach, K, ‘The Challenges of Crafting Remedies for Violations of Socio-economic Rights’ in Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (New York: Cambridge University Press, 2008) 46 Sadurski, W, ‘Economic Rights and Basic Needs’ in Sampford and Galligan (eds), Law, Rights and the Welfare State (London: Croom Helm, 1986) 49 Schacter, J, ‘Political Accountability, Proxy Accountability and the Democratic Legitimacy of Legislatures’ in Bauman and Kahana (eds), The Least Examined Branched: The Role of Legislatures in the Constitutional State (New York: Cambridge University Press, 2006) 45 Scheinin, M, ‘Economic and Social Rights as Legal Rights’ in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights – A Textbook 2nd rev edn (The Hague: Kluwer Law International, 2001) 29 Seedorf, S, and Sibanda, S, ‘Separation of Powers’ in Woolman, Roux and Bishop (eds), Constitutional Law of South Africa 2nd edn (Cape Town: Juta, 2007) 12-1 Shue, H, ‘The Interdependence of Duties’ in Alston and Tomasevski (eds), The Right to Food (Dordrecht: Martinus Nijhoff Publishers, 1984) 83 Skelton, A, ‘Juvenile Justice Reform: Children’s Rights and Responsibilities Versus Crime Control’ in Davel (ed), Children’s Rights in a Transitional Society – Proceedings of a Conference hosted by the Centre for Child Law in Pretoria, 20 October 1998 (Pretoria: Protea Book House, 1999) 88 Sunstein, C, ‘Against Positive Rights’ in Sajó (ed), Western Rights? Post-Communist Application (The Hague: Kluwer Law International, 1996) 225 Uprimny Yepes, R, ‘Should Courts Enforce Social Rights? The Experience of the Colombia Constitutional Court’ in Coomans (ed), Justiciability of Economic and Social Rights, Experiences from Domestic Systems (Antwerpen/Oxford: Intersentia, 2006) 360

270 Select Bibliography Van Hoof, G, ‘The Legal Nature of Economic, Social and Cultural Rights: a Rebuttal of Some Traditional Views’ in Alston and Tomasevski (eds), The Right to Food (Dordrecht: Martinus Nijhoff Publishers, 1984) 97 Viljoen, F, ‘Children’s Rights: a Response from a South African Perspective’ in Brand and Russell (eds), Exploring the Core Content of Socio-economic Rights: South African and International Perspectives (Pretoria: Protea Book House, 2002) 201 Waldron, J, ‘Principles of Legislation’ in Bauman and Kahana (eds), The Least Examined Branch: The Role of Legislatures in the Constitutional State (New York: Cambridge University Press, 2006) 15 —— ‘When Justice Replaces Affection: The Need for Rights’ in Liberal Rights – Collected Papers, 1981–91 (Cambridge: Cambridge University Press, 1993) 370 Wringe, C, ‘Liberal Individualism, Welfare Rights and the Right to Education’ in Freeman and Veerman (eds), The Ideologies of Children’s Rights (Dordrecht: Martinus Nijhoff Publishers, 1991) 191 Young, M, ‘Introduction’ in Young et al (eds), Poverty: Rights, Social Citizenship, and Legal Activism (Toronto: UBC Press, 2007) 1

ARTICLES Abramovich, V, and Pautassi, L, ‘Judicial Activism in the Argentine Health System: Recent Trends’ (2008) 10 Health and Human Rights 53 Aggarwal, R, ‘The Barefoot Lawyers: Prosecuting Child Labour in the Supreme Court of India’ (2004) 2002 Arizona Journal of International and Comparative Law 663 Allison, JWF, ‘Fuller’s Analysis of Polycentric Disputes and the Limits of Adjudication’ (1994) 53 Cambridge Law Journal 367 Alston, P, ‘The Legal Framework of the Convention on the Rights of the Child’ (1992) 91 Bulletin of Human Rights 1 —— and Quinn, G, ‘The Nature and Scope of State Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 156 Alston, P, and Scott, C, ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise’ (2000) 16 South African Journal on Human Rights 206 Appell, R, ‘Representing Children Representing What? Critical Reflections on Lawyering for Children’ (2008) 39 Columbia Human Rights Law Review 573 Arnstein, S, ‘A Ladder of Citizen Participation’ (1969) 35 Journal of the American Institute of Planners 216 Baimu, E, ‘The Government’s Obligation to Provide Anti-Retrovirals to HIV-Positive Women in an African Human Rights Context: The South African Nevirapine Case’ (2002) 2 African Human Rights Law Journal 160 Bandes, S, ‘The Negative Constitution: A Critique’ (1990) 80 Michigan Law Review 2271 Bell, D, ‘Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation’ (1976) 85 Yale Law Journal 470

Select Bibliography 271 Bellamy, R, ‘The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy’ (1996) 44 Political Studies 436 Bennett Woodhouse, B, ‘The Constitutionalisation of Children’s Rights: Incorporating Emerging Human Rights in Constitutional Doctrine’ (1999) 2 University of Pennsylvania Journal of Constitutional Law 1 Bennett Woodhouse, B, ‘“Who Owns The Child?”: Meyer and Pierce and the Child as Property’ (1992) 33 William and Mary Law Review 995 —— ‘Hatching the Egg: A Child-Centred Perspective on Parents’ Rights’ (1993) 14 Cardozo Law Review 1747 Bilchitz, D, ‘Giving Socio-Economic Rights Teeth: The Minimum Core and Its Importance’ (2002) 119 South African Law Journal 484 Bollyky, T, ‘R if C > P + B: A Paradigm for Judicial Remedies of Socio-Economic Rights Violations’ (2002) 18 South African Journal on Human Rights 161 Brown, R, ‘Accountability, Liberty and the Constitution’ (1998) 98 Columbia Law Review 531 Burns, R, and Crawford, C, ‘School shootings, the media, and public fear: Ingredients for a moral panic’ (1999) 32 Crime, Law & Social Change 147 Campbell, T, ‘Really Equal Rights? Some Philosophical Comments on “Why Children Shouldn’t Have Equal Rights” by Laura Purdy’ (1994) 2 International Journal of Children’s Rights 259 Chandler, D, ‘Universal Ethics and Elite Politics: The Limits of Normative Human Rights Theory’ (2001) 5 International Journal of Human Rights 72 Chayes, A, ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harvard Law Review 1281 Cockburn, T, ‘Children as Participative Citizens: A Radical Pluralist Case for “Child-friendly” Public Communication’ (2005) 9 Journal of Social Science 19 Cohen, A, ‘Neither Seen Nor Heard: Children’s Citizenship in Contemporary Democracies’ (2005) 9 Citizenship Studies 221 Cox, A, ‘The Effect of the Search for Equality Upon Judicial Institutions’ (1979) Washington University Law Quarterly 795 Crenshaw, K, ‘Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of Chicago Legal Forum 139 Cullen, H, ‘The Collective Complaints System of the European Social Charter: Interpretative Methods of the European Committee of Social Rights’ (2009) 9 Human Rights Law Review 61 Davids, Y, ‘The People’s Agend vs Election Manifestos of the Political Parties’ (2004) 1 Election Synopsis 12 Davis, D, ‘Socio-economic Rights: Do They Deliver the Goods?’ (2008) 6 International Journal of Constitutional Law 686 Dahl, R, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’ (1957) 6 Journal Of Public Law 279 De Blacam, M, ‘Children, Constitutional Rights and the Separation of Powers’ (2002) 37 Irish Jurist 113 De Ville, J, and du Plessis, L, ‘Bill of Rights Interpretation in the South African Context (1): Diagnostic Observations’ (1993) 4 Stellenbosch Law Review 63

272 Select Bibliography De Villiers, B, ‘Directive Principles of State Policy and fundamental Rights: The Indian Experience’ (1992) 8 South African Journal on Human Rights 29 De Vos, P, ‘Pious Wishes or Directly Enforceable Human Rights?: Social and Economic Rights in South Africa’s 1996 Constitution’ (1997) 13 South African Journal on Human Rights 67 Desmond, C, ‘Now Let’s Hold the Leaders to Account’ (2004) 55 ChildrenFIRST Devlin, R, ‘Jurisprudence For Judges: Why Legal Theory Matters For Social Context Education’ (2001) 27 Queen’s Law Journal 161 DiLello, EV, ‘Fighting Fire with Firefighters: A Proposal for Expert Judges at the Trial Level’, 93 Columbia Law Review 473 (1993) Dixon, R, ‘Creating Dialogue about Socioeconomic Rights: Strong-form Versus Weak-form Judicial Review Revisited’ (2007) 5 International Journal of Constitutional Law 391 —— ‘A Democratic Theory of Constitutional Comparison’ (2008) 56 American Journal of Comparative Law 947 Dugard, Jackie, ‘Judging the Judges: Towards an Appropriate Role for the Judiciary in South Africa’s Transformation’ (2007) 20 Leiden Journal of International Law 965 —— ‘Courts and the Poor in South Africa: A Critique of Systemic Judicial Failures to Advance Transformative Justice’ (2009) 24 South African Journal on Human Rights 214 Dugard, John, ‘International Law and the South African Constitution’ (1997) 8 European Journal of International Law 1 Ely, J, ‘Another Such Victory: Constitutional Theory and Practice in a World Where Courts are No Different From Legislatures’ 77 Virginia Law Review 833 (1991) Epstein, L, Knight, J, and Shvetsova, O, ‘The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government’ (2001) 35 Law & Society Review 117 Eskridge, W, ‘Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics’ (2005) 114 Yale Law Journal 1279 Espíndola, E, and Nieves Rico, M, ‘A Priority Challenge’ (2010) 10 Challenges 5 Fallon, R, ‘The Rule of Law’ as a Concept in Constitutional Discourse’ (1997) 97 Columbia Law Review 1 —— ‘The Core of an Uneasy Case for Judicial Review’ (1998) 121 Harvard Law Review 1694 Federle, K, ‘Rights Flow Downhill’ (1994) 2 International Journal of Children’s Rights 343 —— ‘Looking Ahead: An Empowerment Perspective on the Rights of Children’ (1995) 68 Temple Law Review 1585 Ferraz, O, ‘The Right to Health in the Courts of Brazil: Worsening Health Inequities?’ (2009) 11 Health and Human Rights 33 Fineman, M, ‘The Vulnerable Subject’ (2008) Yale Journal of Law and Feminism 1 Fiss, O, ‘The Supreme Court 1978 Term; Foreword: The Forms of Justice’ (1979) 93 Harvard Law Review 1 Fitzgerald, W, ‘Maturity, Difference, and Mystery: Children’s Perspectives and the Law’ (1994) 36 Arizona Law Review 11

Select Bibliography 273 —— ‘Stories of Child Outlaws: On Child Heroism and Adult Power in Juvenile Justice’ (1996) Wisconsin Law Review 495 Fletcher, WA, ‘The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy’ (1982) 91 Yale Law Journal 635 Friedman, B, ‘Dialogue and Judicial Review’ (1993) 91 Michigan Law Review 577 Fuller, L, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353 Gardbaum, S, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49 American Journal of Comparative Law 707 Goldstein, D, ‘A Swann Song for Remedies: Equitable Relief in the Burger Court’ (1978) 13 Harvard Civil Rights-Civil Liberties Law Review 1 Green, M, ‘What We Talk about When We Talk about Indicators: Current Approaches to Human Rights Measurement’ (2001) 23 Human Rights Quarterly 1062 Gutto, S, ‘Beyond Justiciability: Challenges of Implementing/Enforcing SocioEconomic Rights in South Africa’ (1998) 4 Buffalo Human Rights Law Review 79 Hafen, B, ‘Children’s Liberation and the New Egalitarianism: Some Reservations about Abandoning Youth to Their Rights’ (1976) Brigham Young University Law Review 605 —— ‘Exploring Test Cases in Child Advocacy – In the interests of Children: Advocacy, Law Reform and Public Policy by Robert H. Mnookin’ (1986) 100 Harvard Law Review 435 Hart, J, ‘Children’s Participation and International Development: Attending to the Political’ (2008) 16 International Journal of Children’s Rights 407 Haysom, N, ‘Constitutionalism, Majoritarian Democracy and Socio-Economic Rights’ (1992) 8 South African Journal on Human Rights 451 Heywood, M, ‘Contempt or Compliance? The TAC Case after the Constitutional Court Judgment’ (2003) 4 ESR Review 7 —— ‘Preventing Mother to Child Transmission in South Africa: Background, Strategies and Outcomes of the Treatment Action Campaign Case against the Minister of Health’ (2003) 19 South African Journal on Human Rights 278 Hinrichs, K, ‘Do the Old Exploit the Young? Is Enfranchising Children a Good Idea?’ (2002) 43 European Journal of Sociology 35 Hinton, R, ‘Children’s Participation and Good Governance: Limitations of the Theoretical Literature’ (2008) 16 International Journal of Children’s Rights 285 Hirschl, R, ‘The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions’ (2000) 25 Law & Social Inquiry 91 Hogan, G, ‘Directive Principles and Socio-Economic Rights’ (2001) 35 Irish Jurist 174 Invernizzi, A, and Milne, B, ‘Are Children Entitled to Contribute to International Policy Making? A Critical View of Children’s Participation in the International Campaign for the Elimination of Child Labour’ (2002) 10 International Journal of Children’s Rights 403 —— and ——, ‘Conclusion: Some Elements of An Emergent Discourse on Children’s Right to Citizenship’ (2005) 9 Journal of Social Sciences 83 Kagan, J, ‘A Civic Action: Interpreting “Adequacy” in State Constitutions’ Education Clauses’ (2003) 78 New York University Law Review 2241

274 Select Bibliography Kalmanovitz, S, ‘Las Consecuencias Económicas de los Fallos de la Corte Constitucional’ (1999) November Economia Colombiana y Coyuntura Política 124 Kavanagh, A, ‘The Quest for Legitimacy in Constitutional Interpretation’ (1997) 32 Irish Jurist 145 —— ‘Participation and Judicial Review: A Reply to Jeremy Waldron’ (2003) 22 Law and Philosophy 451 —— ‘Constitutional Review, the Courts and Democratic Scepticism’ (2009) 62 Current Legal Problems 102 Kende, M, ‘The South African Constitutional Court’s Construction of Socioeconomic Rights: A Response to Critics’ (2004) 19 Connecticut Journal of International Law 617 Klarman, M, ‘The Puzzling Resistance to Political Process Theory’ (1991) 77 Virginia Law Review 747 —— ‘Majoritarian Judicial Review: The Entrenchment Problem’ (1997) 85 Georgetown Law Journal 491 Koch, I, ‘Dichotomies, Trichotomies or Waves of Duties?’ (2005) 5 Human Rights Law Review 81 Komesar, N, ‘Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis’ (1984) 51 University of Chicago Law Review 366 Kulynych, J, ‘No Playing in the Public Sphere: Democratic Theory and the Exclusion of Children’ (2001) 27 Social Theory and Practice 231 Kymlicka, W, and Norman, W, ‘Return of the Citizen: A Survey of Recent Work on Citizenship Theory’ (1994) 104 Ethics 352 Kyritsis, D, Representation and Waldron’s Objection to Judicial Review’ (2006) 26 Oxford Journal of Legal Studies 733 Lahiff, E, and Rugege, S, ‘A Critical Assessment of Land Redistribution Policy in the Light of the Grootboom Judgment’ (2002) 6 Law, Democracy & Development 286 Langa, P, ‘“A Delicate Balance”: The Place of the Judiciary in a Constitutional Democracy’ (2006) 22 South African Journal on Human Rights 1 Langbein, J, ‘The German Advantage in Civil Procedure’ (1985) 52 University of Chicago Law Review 823 Leary, V, ‘The Social and Economic Rights of the Child’ (1995) Law & Policy 353 Lecce, S, ‘Should Democracy Grow up? Children and Voting Rights’ (2009) 4 Intergenerational Justice Review 133 Leckie, S, ‘Another Step Towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights’ (1998) 20 Human Rights Quarterly 81 Liebel, M, ‘Working Children as Social Subjects: The Contribution of Working Children’s Organizations to Social Transformations’ (2003) 10 Childhood 265 Liebenberg, S, ‘The International Covenant on Economic, Social and Cultural Rights and its Implications for South Africa’ (1995) 11 South African Journal on Human Rights 359 —— ‘Taking Stock: The Jurisprudence on Children’s Socio-economic Rights and its implications for government policy’ (2004) 5 ESR Review 4 —— ‘Needs, Rights and Transformation: Adjudicating Social Rights in South Africa’ (2005) 6 ESR Review 4

Select Bibliography 275 Liebenberg, S, and Pillay, K, ‘Case Summary: Grootboom v Oostenberg Municipality and Others’ (2000) 2 ESR Review 10 Lister, R, ‘Why Citizenship: Where, How and Why Children’ (2007) 8 Theoretical Inquiries in Law 693 Loffredo, S, ‘Poverty, Democracy and Constitutional Law’ (1993) 141 University of Pennsylvania Law Review 1277 Lundy, L, ‘“Voice” is Not Enough: Conceptualizing Article 12 of the United Nations Convention on the Rights of the Child’ (2007) 33 British Educational Research Journal 927 MacCormick, N, ‘Children’s Rights: A Test-Case for Theories of Rights’ (1976) 62 Rechts- und Sozialphilosophie 305 Mahon, C, ‘Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2008) 8 Human Rights Law Review 617 Martin, F, ‘Towards the Establishment of a Children’s Ombudsman: Champion of Children’s Rights or Unnecessary Interloper?’ (1998) 1 Irish Journal of Family Law 8 Maslow Cohen, J, ‘Competitive and Cooperative Dependencies: the Case for Children’ (1995) 81 Virginia Law Review 2217 McGillivray, A, ‘Why Children Do Have Equal Rights: In Reply to Laura Purdy’ (1994) 2 International Journal of Children’s Rights 244 Michelman, F, ‘On Protecting the Poor through the Fourteenth Amendment’ (1969–70) 83 Harvard Law Review 7 —— ‘Welfare Rights in a Constitutional Democracy’ (1979) Washington University Law Quarterly 659 —— ‘The Constitution, Social Rights and Liberal Political Justification’ (2002) 1 International Journal of Constitutional Law 13 Minow, M, ‘Rights for the Next Generation: A Feminist Approach to Children’s Rights’ (1986) 9 Harvard Women’s Law Journal 1 —— ‘Interpreting Rights: An Essay for Robert Cover’ (1987) 96 Yale Law Journal 1860 —— ‘Whatever Happened to Children’s Rights?’ (1995) 80 Minnesota Law Review 267 Moosa-Mitha, M, ‘A Difference-Centred Alternative to Theorization of Children’s Citizenship Rights’ (2005) 9 Citizenship Studies 369 Motala, Z, ‘Towards an Appropriate Understanding of the Separation of Powers, and Accountability of the Executive and Public Service Under the New South African Order’ (1995) 112 South African Journal on Human Rights 503 Neuborne, B, ‘Judicial Review and Separation of Powers in France and the United States’ (1982) 57 New York University Law Review 363 Nolan, A, ‘Addressing Economic and Social Rights Violations by Non-state Actors through the Role of the State: A Comparison of Regional Approaches to the ‘Obligation to Protect’ (2009) 9 Human Rights Law Review 225 —— ‘The Child as “Democratic Citizen”: – Challenging the “Participation Gap”’ (2010) Public Law 3 767 Nolan, A, and Dutschke, M, ‘Article 2(1) ICESCR and States Parties Obligations: Whither the Budget?’ (2010) 3 European Human Rights Law Review 278

276 Select Bibliography Nussbaum, M, ‘Women’s Education: A Global Challenge’ 29 Signs 325 (2004). O’Connell, P, ‘On Reconciling Irreconcilables: Neo-Liberalisation Globalisation and Human Rights’ (2007) 7 Human Rights Law Review 483 O’Mahony, C, ‘Education, Remedies and the Separation of Powers’ (2002) 24 Dublin University Law Journal 57 O’Regan, K, ‘Introducing Socio-Economic Rights’, Opening Address given at Giving Effect to Socio-Economic Rights: The Role of the Judiciary and other Institutions Workshop held 6 and 7 October 1998 by the Community Law Centre’s Socio-Economic Rights Project and the Constitutional Litigation Unit of the Legal Resources Centre, published in (1999) 1 ESR Review 3 Palmer, E, ‘Resource Allocation, Welfare Rights – Mapping the Boundaries of Judicial Control in Public Administrative Law’ (2001) 20 Oxford Journal of Legal Studies 6 Peters, C, ‘Adjudication as Representation’ (1997) 97 Columbia Law Review 312 Phocase, A, ‘Runaways and California’s Juvenile Law: The Emancipation Option’ (1998) 19 Journal of Juvenile Law 46 Pieterse, M, ‘Coming to Terms with Judicial Enforcement of Socio-Economic Rights’ (2004) 20 South African Journal on Human Rights 383 —— ‘Possibilities and Pitfalls in the Domestic Enforcement of Social Rights: Contemplating the South African Experience’ (2004) 26 Human Rights Quarterly 882 —— ‘Eating Socio-economic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited’ (2007) 29 Human Rights Quarterly 796 Pillay, K, ‘Implementation of Grootboom: Implications for the Enforcement of Socio-economic Rights’ (2002) 6 Law, Democracy and Development 255 —— ‘Implementing Grootboom’ (2002) 3 ESR Review 16 Price Cohen, C, ‘The United Nations Convention on the Rights of the Child: A Feminist Landmark’ (1997) 3 William and Mary Journal of Women and the Law 27 Purdy, L, ‘Why Children Shouldn’t Have Equal Rights’ (1994) 2 International Journal of Children’s Rights 223 Rampal, A, ‘Scaffolded Participation of Children: Perspectives from India’ (2008) 16 International Journal of Children’s Rights 313 Ray, B, ‘Occupiers of 51 Olivia Road v City of Johannesburg: Enforcing the Right to Adequate Housing through “Engagement”’ (2008) 8 Human Rights Law Review 703 Ray, B, ‘Residents of Joe Slovo Community v Thubelisha Homes and Others: the two faces of engagement’ (2010) 10 Human Rights Law Review 360 Redmond, G, ‘Child poverty and child rights: edging towards a definition’ (2008) 14 Journal of Children and Poverty 63 —— ‘Children as Actors: How Does the Child Perspectives Literature Treat Agency in the Context of Poverty?’ (2009) 8 Social Policy and Society 541 Roach, K, and Budlender, G, ‘Mandatory Relief and Supervisory Jurisdiction: When is it Appropriate, Just and Equitable?’ (2005) 22 South African Law Journal 325 Robertson, RE, ‘Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realizing Economic, Social and Cultural Rights’ (1994) 16 Human Rights Quarterly 693 Roche, J, ‘Children: Rights, Participation and Practice’ (1999) 6 Childhood 475

Select Bibliography 277 Rajagopal, B, ‘Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective’ (2007) Human Rights Review 157 Rottinghaus, B, and Baldwin, G, ‘Voting Behind Bars: Explaining Variation in International Enfranchisement Practices’ (2007) 26 Electoral Studies 688 Ruane, B, ‘The Separation of Powers and the Granting of Mandatory Orders to Enforce Constitutional Rights’ (2002) 7 Bar Review 11 Rutherford, J, ‘One Child, One Vote: Proxies for Parents’ (1998) 82 Minnesota Law Review 1463 Sadurski, W, ‘Judicial Protection of Minorities: The Lessons of Footnote 4’ (1988) 17 Anglo-American Law Review 163 Saffron, M, ‘Can Constitutional Courts be Counterhegemonic Powers vis-à-vis Neoliberalism? The Case of the Colombian Constitutional Court’ (2007) 5 Seattle Journal for Social Justice 533 Schacter, J, ‘Ely and the Idea of Democracy’ (2004) 57 Stanford Law Review Scott, C, ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial fusion of the International Covenants on Human Rights’ (1989) 27 Osgoode Hall Law Journal 769 Scott, C, and Macklem, P, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141 University of Pennsylvania Law Review 1 Sherry, S, ‘Civic Virtue and the Feminine Voice in Constitutional Adjudication’ (1986) 72 Virginia Law Review 543 Shier, H, ‘Pathways to Participation: Openings, Opportunities and Obligations: a New Model for Enhancing Children’s Participation in Decision-making, In Line With Article 12(1) of the United Nations Convention on the Rights of the Child’ (2001) 15 Children & Society 107 Sigal, M, and Antunes, D, ‘Budget Analysis and The Right to Education in the City of Buenos Aries’ (2010) 3 European Human Rights Law Review 317 Simon, T, ‘Suspect Class Democracy: A Social Theory’ (1990) 45 University of Miami Law Review 107 Sinclair, R, ‘Participation in Practice: Making it Meaningful, Effective and Sustainable’ (2004) 18 Children and Society 106 Sloth-Nielsen, J, ‘Chicken Soup or Chainsaws: Some Implications of the Constitutionalisation of Children’s Rights in South Africa’ (1996) Acta Juridica 6 —— ‘The Child’s Right to Social Services, the Rights to Social Security and Primary Prevention of Child Abuse: Some Conclusions in the Aftermath of Grootboom’ (2001) 17 South African Journal on Human Rights 210 Stalford, H, ‘The Citizenship Status of Children in the European Union’ (2000) 8 International Journal of Children’s Rights 101 Thomas, N, ‘Towards a Theory of Children’s Participation’ (2007) 15 International Journal of Children’s Rights 199 Tinta, M, ‘Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions’ (2007) 29 Human Rights Quarterly 431 Tisdall, K, ‘Is the Honeymoon Over? Children and Young People’s Participation in Public Decision-Making’ (2008) 16 International Journal of Children’s Rights 419

278 Select Bibliography Tisdall, K, and Davis, J, ‘Making a Difference? Bringing Children’s and Young People’s Views into Policy-making’ (2004) 18 Children & Society 131 Tobin, J, ‘Partners Worth Courting: The Relationship Between the Media and the Convention on the Rights of the Child’ (2004) 12 International Journal of Children’s Rights 139 —— ‘Increasingly Seen and Heard: The Constitutional Recognition of Children’s Rights’ (2005) 21 South African Journal on Human Rights 86 Todres, J, ‘Women’s Rights and Children’s Rights: A Partnership with Benefits for Both’ (2004) 10 Cardozo Women’s Law Journal 603 Turner, B, ‘Citizenship studies: A General Theory’ (1997) 1(1) Citizenship Studies 5 Tushnet, M, ‘Civil Rights and Social Rights: The Future of the Reconstruction Amendments’ (1992) 25 Loyola of Los Angeles Law Review 1207 —— ‘How Different are Waldron and Fallon’s Core Cases for and Against Judicial Review?’ (2010) 1 Oxford Journal of Legal Studies 49 Umpstead, R, ‘Determining Adequacy: How Courts Are Redefining State Responsibility for Educational Finance, Goals, and Accountability’ (2007) Brigham Young University Education and Law Journal 281 Van Bueren, G, ‘Combating Child Poverty – Human Rights Approaches’ (1999) 21 Human Rights Quarterly 680 —— ‘Including the Excluded: the Case for an Economic, Social and Cultural Human Rights Act’ (2002) Public Law 456 van Parijs, P, ‘The Disfranchisement of the Elderly, and Other Attempts to Secure Intergenerational Justice’ (1999) 27 Philosophy and Public Affairs 292 Waldron, J, ‘A Rights-Based Critique of Constitutional Rights’ (1993) Oxford Journal of Legal Studies 13 —— ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ (2002) 21 Law and Philosophy 137 —— ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346 Welling, J, ‘International Indicators and Economic, Social and Cultural Rights’ in (2008) 30 Human Rights Quarterly 933 Wellman, M, ‘Practical Reasoning & Judicial Justification: Towards an Adequate Theory’ (1985) 57 University of Colorado Law Review 45 Wesley, JW, ‘Scientific Evidence and the Question of Judicial Capacity’ (1984) 25 William and Mary Law Review 675 Wesson, M, ‘Grootboom and Beyond: Reassessing the Socio-Economic Jurisprudence of the South African Constitutional Court’ (2004) 20 South African Journal on Human Rights 284 Wexler, S, ‘Practicing Law for Poor People’ (1970) 79 Yale Law Journal 1049 Whelan D, and Donnelly, J, ‘The West, Economic and Social Rights, and the Global Human Rights Regime: Seeing the Record Straight’ (2007) 29 Human Rights Quarterly 908 Whittington, K, ‘An Indispensable Feature: Constitutionalism and Judicial Review’ (2002–3) New York University Journal of Legislation and Public Policy 21 Woolman, S, and Davis, D, ‘The Last Laugh: Du Plessis v De Klerk, Classical Liberalism and the Applications of Fundamental Rights Under the Interim and Final Constitutions’ (1996) 12 South African Journal on Human Rights 36

Select Bibliography 279 Yamin, A, and Parra-Vera, O, ‘How Do Courts Set Health Policy? The Case of the Colombian Constitutional Court’ (2009) 6 Public Library of Science Medicine 147

WORKING PAPERS Danchin, P, ‘A Human Right to Water? The South African Constitutional Court’s Decision in the Mazibuko Case’ EJIL: TALK! 13 January 2010: www.ejiltalk.org/ a-human-right-to-water-the-south-african-constitutional-court%E2%80%99sdecision-in-the-mazibuko-case/ EURONET, ‘Contribution to the European Roundtable on Social Exclusion Workshop 2: The Instruments for the Governance of Multilevel Welfare Systems (European, National, Regional and Local) and for the Promotion of the Mobilisation of the Actors’ (2003) Ferraz, O, ‘Between Usurpation and Abdication: The Right to Health in the Courts of Brazil and South Africa’: www.ssrn.com/abstract=1458299 Nolan, A, Langford, M, and Porter, B, ‘The Justiciability of Social and Economic Rights: An Updated Appraisal’ NYU Centre for Human Rights and Global Justice Working Paper Series, No15 of 2007 O’Donnell, D, ‘The Right of Children to be Heard: Children’s right to have their views taken into account and to participate in legal and administrative proceedings’, Innocenti Working Paper No 2009-04 (UNICEF Innocenti Research Centre, Florence, 2009) Rebell, M, and Wolff, J, ‘Litigation and Education Reform: The History and the Promise of the Education Adequacy Movement’, The Campaign for Educational Equity Policy Paper No 1 (2006) Sen, A, ‘Social Exclusion: Concept, Application and Scrutiny’, Social Development Papers No 1, (Office of Environment and Social Development Asian Development Bank, 2000) Sunstein, C, ‘Social and Economic Rights? Lessons from South Africa’, University of Chicago Law School Public Law and Legal Theory Working Paper No 12 (2000) Waldron, J, ‘Can There Be a Democratic Jurisprudence?’ NYU School of Law, Public Law Research Paper No 08-35 (2008)

SEMINAR/CONFERENCE/WORKSHOP PAPERS Binchy, W, ‘Promoting Economic, Social and Cultural Rights in Ireland’, presented at Irish Human Rights Commission and the Law Society of Ireland, Annual Human Rights Conference: Economic, Social and Cultural Rights: Making States Accountable, 21 November 2009 Brinks, D, ‘Solving the Problem of (Non) Compliance in SE Rights Litigation’, presented at a symposium on Enforcement of ESCR Judgments, Bogota, Colombia, 6–7 May 2010 Ferraz, O, ‘Right to Health Litigation in Brazil: An Overview of the Research’, presented at a workshop on Rights to Health Through Litigation: Can Court

280 Select Bibliography Enforced Health Rights Improve Health Policy? University Torquata di Tella, Buenos Aires, Argentina, 15–17 April 2009 Foley, E, ‘Why Child Focused NGOs Should Consider Adding Litigation to Their Range of Tools’, presented at a conference on Convention on the Rights of the Child: From Moral Imperatives to Legal Obligations – In Search of Effective Remedies for Child Rights Violations, Switzerland, 12–13 November 2009 Langford, M, ‘Background Assessment and Strategy Paper’, presented at the ESCR-Net International Strategy Conference, Geneva, Nairobi, Kenya, 1–4 December 2008 Lemaitre Ripoll, J, ‘Someone Writes to the Colonel: Judicial Protection of the Right to Survival in Colombia and the State’s Duty to Rescue’, presented at a ‘Seminar on Constitutional and Politics Theory in Latin America’ (Seminario en Latinoamérica de Teoría Constitucional y Política), Rio de Janeiro, Brazil, 16–19 June 2005 Maués, A, ‘The limits of litigation strategies: the case of right to health in Brazil’, presented at a conference on The Local Relevance of Human Rights, University of Antwerp, Belgium, 16–18 October 2008 Newell, P, Submission to the Human Rights Council Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure Switzerland, Geneva, 14–18 December 2009 Rodríguez Gravito, C, ‘Assessing the Impact and Promoting the Implementation of Structural Judgments: A Comparative Case Study of ESCR Rulings in Colombia’, presented at symposium on Enforcement of ESCR Judgments, Bogota, Colombia, 6–7 May 2010 Sérgio Pinheiro, P, (Commissioner and Rapporteur on the Rights of the Child, Inter-American Commission on Human Rights), Submission to the Human Rights Council Working Group on an optional protocol to the Convention on the Rights of the Child to provide a communications procedure (of 14–18 December 2009) Sigal, M, ‘Budget Analysis and Litigation’, presented at a conference on Budget Decisions and Economic and Social Rights, Queens University, Belfast, 14–15 November 2009 —— Morales, D, and Rossi, J, ‘Preliminary Considerations on the Implementation of Courts Decisions Concerning Social Rights in Argentina’, presented at symposium on Enforcement of ESCR Judgments, Bogota, Colombia, 6–7 May 2010 Waldron, J, ‘“Constitutional” Democracy or Constitutional Democracy’, presented at a conference on Accountability and Representation in European Democracy at the Center for European Studies, Harvard University, 2–3 May 2003 (on file with J Waldron) Whyte, G, ‘Socio-Economic Rights in Ireland: Judicial and Non-Judicial Enforcement’, presented at a conference on Economic, Social and Cultural Rights: Models of Enforcement organised by the Irish Human Rights Commission, Dublin, Ireland, 9–10 December 2005

REPORTS/STUDIES/SUBMISSIONS/FACTSHEETS African Child Policy Forum, The African Report on Child Wellbeing 2008: How Child-Friendly are African Governments? (Ethiopia: The Africa Child Policy Forum, 2008)

Select Bibliography 281 Ali, J, and Davies, T, (eds), Social Media: Youth Participation in Local Democracy (London: Local Government Information Unit, 2009) Anderton, A, and Abbott, R, Youth engagement – Deliberative research (London: Youth Citizenship Commission, 2009) Children’s Rights Alliance, Small Voices: Vital Rights: Submission to the United Nations Committee on the Rights of the Child (Dublin: Children’s Rights Alliance, 1997) Children Rights Alliance for England, Children’s Rights and Equality in the Newspapers (London: Children Rights Alliance for England, 2009) Child Rights Information Network. Global Report on Laws Protecting Children from Age Discrimination (London: CRIN, 2009) ——, ‘Global report on Status Offences’ (London: CRIN, 2009) Council of the European Union, Joint report by the Commission and the Council on social inclusion (Council Document No 7101/04, Brussels, 2004) ——, Charter of Fundamental Rights of the European Union: Explanations relating to the complete text of the Charter (Luxembourg: Office for Official Publications of the European Communities, 2001) Crime Prosecution Service, Hate Crime Report 2008–2009 (London: Crown Prosecution Service, 2010) ESCR-Net, De Justicia and the Norwegian Human Rights Centre, Enforcement of ESR Rights Judgments: Analytical Report (New York: ESCR-Net/De Justicia/ University of Oslo, 2010) European Union: European Commission, Communication from the Commission, Towards an EU Strategy on the Rights of the Child, 4 July 2006, COM(2006) 367 Friedman, S, and Mottiar, S, A Moral to the Tale: The Treatment Action Campaign and the Politics of HIV/AIDS (Kwazulu-Natal: Centre for Policy Studies, 2004) Hart, R, Children’s Participation: From Tokenism to Citizenship (Geneva: UNICEF International Child Development Centre, 1992) Hirsh, D, Estimating the Costs of Child Poverty (York: Joseph Rowntree Foundation, 2008) Hodgkins, R, and Newell, P, Implementation Handbook for the Convention on the Rights of the Child (New York: UNICEF, 1988) Innocenti Research Centre, Child Poverty in Perspective – An overview of child well-being in rich countries: A comprehensive assessment of the lives and wellbeing of children and adolescents in the economically advanced nations (Florence: UNICEF, 2007) ——, Promoting the Rights of Children with Disabilities (Florence: UNICEF, 2007) Jahan, S, ‘Human Rights-Based Approach to Poverty Reduction – Analytical Linkages, Practical Work and UNDP’ (Geneva: UNDP, 2002) Kinsella, K, and Wan, H, US Census Bureau, An Aging World: 2008 (Washington DC: US Government Printing Office, 2009) Lansdown, G, Children’s Participation in Democratic Decision-Making (Florence, Innocenti Research Centre, 2001) Langford, M, and Nolan, A, Legal Practitioners’ Dossier Vols 1 & 2 (Geneva: Centre on Housing Rights & Evictions, 2006)

282 Select Bibliography Lenhart, A, Purcell, K, Smith, A, and Zickuhr, K, Social Media and Mobile Internet Use Among Teens and Young Adults (Washington DC: Pew Internet and American Life Project, 2010) Mexican American Legal Defense and Educational Fund, Diminished Voting Power in the Latino Community: The Impact of Felony Disenfrachisement Laws in Ten Targeted States (California: Maldef, 2003) Media Monitoring Africa, Deadly Silence – Media Election Coverage Confirms Disinterest in the Welfare of Children (Cape Town: MMP, 2009) Media Monitoring Project, Children: Dying to Make the News (Cape Town: MMP, 2003) National Youth Federation, National Youth Poll (Dublin: National Youth Federation, 2004) Nolan, A, Thiele, B, and Langford, M, Leading Cases on Economic, Social and Cultural Rights: Summaries (Geneva: Centre on Housing Rights and Evictions, 2009) OECD, Growing Unequal: Income Distribution and Poverty in OECD Countries (Paris: OECD Publishing, 2008) OHCHR, ‘Children’s Rights’ in Office of the High Commissioner for Human Rights, Training Manual on Human Rights Monitoring (Geneva: OHCHR, 2001) ——, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, 6 June 2008, UN Doc HRI/MC/2008/3 ——, Report of the High Commissioner for Human Rights on Implementation of Economic, Social and Cultural Rights, 8 June 2009, UN Doc E/2009/90 Plan, Growing Up in Asia: Plan’s Strategic Framework for Fighting Child Poverty in Asia 2005 – 2015 (Bangkok: Plan, 2005) QUB Budget Analysis Project, Budgeting for Economic and Social Rights: A Human Rights Framework (Belfast: Queen’s University Belfast, 2010) Quinn, G, Degener, T, Bruce, A, Burke, C, Castellino, J, Kenna, P, Kilkelly, U, and Quinlivan, S, Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (New York/Geneva: OHCHR, 2002) Rodríguez Gravito, C, and Rodríguez Franco, D, Cortes y Cambio Social: Cómo la Corte Constitucional Transformó el Desplazamiento Forzado en Colombia (Bogotá: Centro de Estudios de Derecho, Justicia y Sociedad, Dejusticia, 2010) Snellman, A, The Development of a Socio-economic Rights Jurisprudence in South Africa – a Minor Field Study (2002) (unpublished dissertation, Örebro University) Treseder, P, Empowering Children and Young People Training Manual: Promoting Involvement in Decision-making (London: Save the Children, UK, 1997) UNICEF, The State of the World’s Children 2006: Invisible and Excluded (New York: UNICEF, 2006) ——, Poverty Reduction Begins with Children (New York: UNICEF, 2000) ——, The State of the World’s Children 2005 (New York: UNICEF, 2004) ——, The State of the World’s Children 2005 (New York: UNICEF, 2005) ——, ‘A league table of child poverty in rich nations’, Innocenti Report Card No. 1 (Florence: Innocenti Research Centre, 2000) United Nations Development Programme, Human Development Report 2010 (Geneva: UNDP, 2010)

Select Bibliography 283 UN Special Rapporteur, ‘Report of the UN Special Rapporteur on adequate housing as a component of the right to an adequate standard of living’, 13 February 2008, UN Doc A/HRC/7/16 ——, ‘Civil and Political Rights, Including the Questions of Disappearances and Summary Executions: Extrajudicial, summary or arbitrary executions’, 13 January 2003, UN Doc E/CN.4/2003/3 ——, ‘Civil and Political Rights, Including the Questions of Disappearances and Summary Executions: Extrajudicial, summary or arbitrary executions’, 22 December 2003, UN Doc E/CN.4/2004/7 ——, ‘Report on health systems and human rights-based approach to health indicators’, 3 March 2006, UN Doc E/CN.4/2006/48 WHO Technical Consultation on Behalf of the UNFPA/UNICEF/WHO/UNAIDS Inter-Agency Task Team on Mother-to-Child-Transmission of HIV, New Data on the Prevention of Mother-to-Child-Transmission of HIV and their Policy Implications – Conclusions and Recommendations (Geneva: WHO, 2000) WHO, ‘World Health Information Fact Sheet 199’ Yeo, R, Disability, Poverty and the New Development Agenda (DFID/Disability Knowledge and Research Programme, 2005)

SELECTED NEWSPAPER ARTICLES AND PRESS RELEASES ‘Judge Orders Building of Care Units’ Irish Times 26 February 2000 ‘Judge Sends 15-year-old from Dysfunctional Family to St. Patrick’s’ Irish Times 23 June 2001 ‘Noisy Children No Longer Verboten in Berlin’ BBC News 17 February 2010. ‘Social Movements – ‘Ultra-left’ or ‘Global Citizens’ Mail & Guardian 4 February 2003 ‘State to Obey Antiretroviral Ruling’ Business Day 8 July 2002. ‘Child Justice Alliance Objects to Media Statistics’ Legalbrief Today 28 August 2008 Ackerman, R, ‘Human Rights Triumph as state loses AIDS battle’ Sunday Times 7 July 2002 Budlender, G, ‘A Paper Dog with Real Teeth’ Mail & Guardian, 12 July 2002 Carolan, M, ‘Promised Units for Troubled Children Delayed’ Irish Times 17 December 1999 ——, ‘Minister’s Commitment to Children Challenged’ Irish Times 27 July 2000 ——, ‘Judge Orders State to Provide Facility for Girl’ Irish Times 24 May 2000 ——, ‘Girl Who Had “Ghastly” Childhood Alleged She Was Used for Prostitution’ Irish Times 15 June 2001 Children’s Rights and You, ‘This Elections – Stand up for Children!’ Press Release, 13 April 2009 CTV.Ca News Staff, ‘Prisoners Exercise Their Right to Vote’, www.ctv.ca, 11 January 2006 Christensen, C, ‘Iran: Networked Dissent’ Le Monde Diplomatique 2 July 2009 Cunningham, G, and Maddock, J, ‘Kim: Judge Raps Health Board over Several ‘Serious Errors’ Irish Independent 13 October 2001. Desmond, C, ‘Children Challenge Victim Stereotype’ 55 ChildrenFIRST

284 Select Bibliography Donohoe, M, and Coulter, C, ‘State to Go to High Court over Contempt Threat on Ministers’ Irish Times 19 October 2000 Flynn, S ‘Special Needs Expenditure Up by £63m’ Irish Times 26 November 2001 Flynn, S, and Downes, J, ‘INTO Welcomes 660 special posts’ Irish Times 9 May 2005 Gedmin, J, ‘Democracy Isn’t Just a Tweet Away’ USA Today 22 April 2010 Heaven, W, ‘Iran’s Crackdown Proves that the “Twitter Revolution” Has Made Things Worse’ The Telegraph 8 July 2009 Hennessy, S, ‘Activists See Social Media as Key Tool in Fight Against Extremism’ Voice of America 12 March 2010 Independent Expert on Human Rights and Extreme Poverty, ‘“No Green Shoots of Recovery for the World’s Poor” Says UN Expert on Extreme Poverty’, Press Release, 17 October 2009 Kadalie, R, ‘Contrary’ Rulings Explain ANC Assault on Judges’ Business Day 12 May 2005 Keen, A, ‘Social Media and the Internet Do Not Spread Democracy’ The Telegraph 18 Aug 2009 Maddock, J, ‘Judge Gives Ultimatum over Disturbed Teenager’ Irish Independent 24 May 2000 —— ‘£700,000 Funds But ‘No EHB Plan for Child Places’ Irish Independent 2 Dec. 1998 —— ‘State Failure ‘Could Cost Lives’ of Children at Risk’ Irish Independent 22 July 1998 Minihan, J, ‘Solving Childcare by Putting Children First’ Irish Times 3 May 2005 O’Brien, C, ‘Calls for $2,000 Payments to Be ‘Separate’ Irish Times 24 February 2005 O’Morain, P, ‘Advisory Body on Residential Child Care Set Up by Hanafin’ Irish Times 21 February 2000. —— ‘Extra 200 Residential Places for Troubled Children Threatened’ Irish Times 26 April 1999 —— ‘Judge Still Fighting for Troubled Children Failed by the System’ Irish Times 18 October 2000 Rice-Knight, M, ‘The Kids Aren’t Alright’ The Observer 5 December 2004

Index Abortion right to life, 24 Adjudication see also Litigation effects of adjudication, 242, 244, 258, 246 non-litigating children, 242, 244, 258, 246 socio-economic rights, 159, 163 Adults Socio-economic rights holders, 15–16 see also Representation by adults African Charter on the Rights and Welfare of the Child age of majority, 4 childhood, 4 African Charter on Human and Peoples’ Rights right to food, 39 right to housing/shelter, 39 AIDS/HIV child-headed households, 60 child poverty, 233 South Africa, 154, 155, 213, 214, 242 American Convention on Human Rights (ACHR) extent of protection, 3, 36, 37 Argentina constitutional rights, 4, 33, 42, 137, 196 international human rights instruments, 33 judgment implementation, 207, 210, 245 ombudspersons, 76, 77 right to health, 244, 245 see also Right to health right to social security, 4 separation of powers, 137 socio-economic rights, 236 Best interests principle conflict, 253 failure to establish an absolute priority for children, 253 indeterminacy, 252 legal proceedings, 222–223 see also Children’s participation in legal proceedings other disadvantaged children whose rights are not before the courts, 253 see also Other disadvantaged children whose rights are not before the courts parental representation, 56–8 see also Parental representation paternalism, 13

see also Paternalism socio-economic rights, 251, 252 UN Committee on the Rights of the Child (ComRC), 251, 253 UN Convention on the Rights of the Child (CRC), 251–3 Birth rate falling birth rates, 71 Brazil Brazilian Constitution, 239 constitutional rights, 31, 32, 239 prioritisation of rights, 239 right to health, 237, 244, 245 see also Right to health Canada assessors, 200 judicial remedies, 205 social security, 250 Child as democratic citizen see also Citizenship; Non-citizens citizens in the making, 47 civic activity, 49 civil citizenship, 47, 48 exclusion from citizenship, 48, 49 exclusion from democracy, 7, 43, 44, 48, 49, 83, 102, 103, 109, 110, 126, 257 see also Democracy; Democratic Decision-making freedom of association, 48 freedom of expression, 48 freedom of thought, conscience, religion, 48 growing awareness, 46 law/policy-making, 47 legal rights, 48 limited democratic citizenship, 258 participation, 49 political agency, 49 ‘political’ citizenship, 46–8 political power, 47 political processes, 47 social citizenship, 47 Child labour adult-led campaigns, 67, 74 elimination, 74 Global Child Labour Conference (2010), 74 International Labour Organisation (ILO), 74 parental representation of child labourers, 59 restrictions, 84

286 Index UN Committee on the Rights of the Child, 74, 75 views of working children, 74, 75 Child lobby groups child labour, 74, 75 see also Child labour conflicting interests with other groups, 75 lack of organising capacity, 73, 75 lack of resources, 73 representation by adults, 66, 67, 69 self-advocacy groups, 73 working children, 73–5 Child poverty AIDS/HIV, 233 anti-poverty strategies, xxviii armed conflict situations, 233 causes, xix, xxviii, 233 children’s rights, xviii definitions, xxvii eradication, 232, 233 failure of representation, 91, 92 human rights, 232 impact, xxvii, xxviii judicial activity, 232, 233 judicial capacity to remedy, 232, 233 levels, xxxiv parental representation of poor children, 62 poverty law, 229 representation by adults of poor children, 68 socio-economic rights, xxviii, 232, 233 statistics, 89 Child Rights Information Network strategic litigation, 228 Childhood beginning, 2–4 conceptions, 2–3 developmental model, 2 end, 4–6 link with enfranchisement, 5, 6 social status, 10 Children age of majority, 4–7 autism, 61, 62 autonomy, 12, 13, 25 best interests, 13 see also Best interests principle capability/capacity, 5, 12–13, 25 child as democratic citizen see Child as democratic citizen child liberationalists, 12 children whose rights are subject to court order, 246, 250, 251, 253 children with disabilities, 20, 61 civil and political rights, xxx, 13, 14 see also Civil and political rights claim to protection, 127–9 constitutional rights 6, 7, 14 definitions, 1, 2, 4, 5, 7

democratic decision-making, 2, 6, 7, 11–13, 44, 83, 84, 126, 132–5, 182, 183, 185, 257 see also Democratic decision-making dependence, 10, 11, 229 determination of maturity, 5 differential treatment, 11 disempowerment, 255, 256 economic resources/economic power, 83, 84 equality, 11, 21 equal moral status, 8 gender discrimination, 9 human rights protection, 3 inability to organise as pressure group, 43 increased constitutionalisation of children’s socio-economic rights, xv–vi judicial approach to rights, 5 judicial perceptions, 256 juvenile justice, 6, 51, 118–19 legal distinctions, 2 minority groups, 7, 20, 116–121, 129, 130 see also Minorities non-litigating children, 242, 244, 246, 258 other disadvantaged children whose rights are not before the courts, 246, 248–51 participation in legal proceedings see Children’s participation in legal proceedings participation rights see Participation rights passive exclusion, 129 paternalism, 11–13 see also Paternalism policy-making decisions/processes, 43, 134, 135 political equality, 110, 111, 132 political status, 102 poor children, 223, 225, 229 prejudice, 53–3, 129–30 representation by adults see Representation by adults representation of children see Representation of children in democracy; Representation of children in legal proceedings right to adequate housing see Right to adequate housing right to education see Right to education right to food see Right to food right to health see Right to health rights-bearers, 1, 7–9, 105–6 see also Socio-economic rights-holders sexism, 9 shared characteristics, 8

Index 287 socio-economic rights see Socio-economic rights social exclusion, 233 social group, 8 special needs, 153, 154 special protection under a process-based theory of judicial review, 126 unborn, 2–4 unenfranchised state, 43, 44, 97, 109–11, 126, 131 unpopular groups, 216 virtual representation, 49–51, 54, 55, 69–71 see also Virtual representation voting age, 5 vulnerability, 10–13, 15, 16, 20, 216 Children’s participation in legal proceedings see also Representation of children in legal proceedings; Litigation age of child, 222 barriers/obstacles, 223–5 constructed incapacities, 221 effective litigation, 228 enforcement of rights, 222, 224 guardians ad litem, 222, 224 inability to sue directly, 222 lack of maturity, 222 litigation rights, 224, 228 poorer children, 223, 225 reduced participation, 231 removal from legal process, 222 right to be heard, 226 symbolic goals, 230 UN Convention on the Rights of the Child (CRC), 226 Children whose rights are subject to court order reallocation of resources, 246, 250, 251, 253 Citizenship see also Non-citizens citizenship as identity, 48 citizenship theory, 46 civil, 46–8 democratic element, 47 exercise of political power, 46, 47 liberal notion, 48, 49 limited citizenship, 258 participation rights, 78, 79 political 46–8 social, 46, 47 Civil and political rights budgetary consequences, 203 children’s welfare, 13 dominance of children’s rights discourses, xxx freedom of assembly, 14 freedom of association, 48

freedom of expression, 48 freedom of thought, conscience, religion, 48, 65, 77 protection of life, 13 Colombia Columbian Constitution, 14, 22, 237 Constitutional Court, 132, 208, 236, 238, 239 entitlement to state provision, 236, 237 health system, 238, 239 international human rights law, 33, 60 judicial enforcement, 202, 239, 240 prioritisation of rights, 238, 239 right to health, 202 right to social security, 14, 132 separation of powers, 137, 138 socio-economic rights, 14, 132, 208, 236–8 state failure to implement programmes, 176 tutela actions, 42, 202, 238, 240, 241 Commutative justice Irish constitutional jurisprudence, 164, 166, 169 role of the courts, 167, 183, 202 Constitutional supremacy effect, 203 Ireland, 151–2 judicial intervention, 134 South Africa, 148–9 ‘Core of the Case against Judicial Review’ see also Judicial review democratic institutions, 102 disagreement about rights, 102–9 see also Disagreement about rights individual/minority rights, 102 judicial institutions, 102 political exclusion of children, 102, 103, 109, 110 representative legislature, 102, 114 status of children, 102, 103 Counter-majoritarian objection basis, 131 children’s rights, 132 democratic decision-making, 94, 132, 133 see also Democratic decision-making exercise of judicial control, 94 failure of representation see Failure of representation invalidating legislative acts, 94, 98, 100, 101 judicial enforcement, 93, 257 judicial review, 82, 93–6, 98 see also Judicial review minorities, 118–21, 129, 130 see also Minorities political accountability, 96, 97, 131 tyranny of the majority, 116–20 see also Tyranny of the majority

288 Index unconstitutional legislation, 98 will of the majority, 131 Courts as obstacles to enforcement of children’s socio-economic rights see also Efficacy; Judgment implementation application of rights, 234 existing power distributions, 234 interpretation of entitlement to state provision, 236–8 judicial background, 234 judicial deference, 234, 235 judicial diversity, 234 prevalence of law suits, 240, 241 prioritisation of rights, 238, 239 reliance of international treaties, 236 rights of groups of children, 239, 240 social elitism, 234 Declaratory orders definition, 41 failure of representation, 115, 116 judicial intervention, 40, 41, 115, 116, 175, 205 mandatory orders, distinguished, 161 Democracy adult suffrage, 102 child as democratic citizen see Child as democratic citizen constitutional amendment, 96 constitutional systems, 45, 94 definition 44–6, 99, 122 effective representation, 96 electoral process, 94, 95 enhancement, 78 executive accountability, 101 judicial accountability, 97, 98, 101 judicial decision-making, 100 legislative accountability, 97, 98 majoritarian premise, 95 majoritarianism, 100 majority decisions, 46, 99 participation rights, 78 accountability, 96–8 political equality, 100 political participation, 101 presumptions, 93, 96 proceduralist theory, 50, 121–3, 124, representation of children see Representation of children in democracy representative legislature, 102 resolving disagreements, 99 results-orientated judicial activity, 45 self-determination, 95 source of interpretative principles, 123 status of children, 102, 103 unenfranchised groups, 126, 127 value-based conceptions, 45, 101

Democratic decision-making see also Participation rights children degree of influence, 6, 7 education level, 7 exclusion, 7, 43, 44, 48, 49, 257 involvement, 2, 6, 7, 11–13, 44, 83, 84, 126, 132, 133, 182, 183, 185 socio-economic class, 7 counter-majoritarian objection, 44, 132, 133 see also Counter-majoritarian objection indirect participation, 110 political sphere, 49 role of economic resources/power, 83, 84 role of the media, 84, 88 separation of powers, 44 see also Separation of powers Demographic changes impact, 71–3 intergenerational inequalities, 72 Disagreement about rights children’s socio-economic rights, 103–6, 109, 111 detailed application of rights, 103, 107, 108 exclusion/inclusion of children, 110, 111 majoritarianism, 109–12 meaning of rights, 103, 104 nature of rights, 103, 105, 106 respectful decision procedure, 109, 110 state obligations, 106–8 Discrimination age discrimination, 17 children as rights-holders, 18–21 disability discrimination/disablism, 18, 19 gender discrimination, 9, 20, 233 Distributive justice Irish constitutional jurisprudence, 164–7, 169, 202 judicial review, 130 Economic crisis credit crisis, xxix global economic recovery, xxix Education see Right to education Efficacy of judicial enforcement see also Judgment implementation child-specific case law, 188 constitutional violations, 219 enforcement of judicial decisions, 187, 188 evaluating efficacy decisions subsequently reversed, 190, 191 direct/indirect effects, 189, 190 influencing political views, 190 law/policy review, 190 litigation strategy, 188 negative effects, 190 public awareness, 189

Index 289 realisation of rights, 188–91, 212, 219 social change/social policy, 188, 189 information deficit, 193–7, 200 see Information deficit institutional incapacity, 191–3 see also Institutional incapacity judicial deference, 181–3, 150, 219 lack of judicial expertise, 197–200 see also Lack of judicial expertise likelihood of success, 188, 212, 218, 219 Elected representatives burdens of inertia capacity constraints, 55 legislative processes, 56 prioritising of claims, 55 incumbency, 50, 51, 53 legislator prejudice, 52, 53 political accountability, 96–7 public order measures, 53, 54 re-election, 50, 55 representation of adult interests, 55 role, 50 shared interests with children, 50–3, 56 socio-economic status, 54 validity of claims, 55 vested interests, 53 EU Charter of Fundamental Rights child-specific provision, 3, 4 European Committee of Social Rights right to life, 3 European Convention on Human Rights (ECHR) age of majority, 5 margin of appreciation, 3 right to life, 3 unborn, 3 European Court of Human Rights (ECtHR) right to life, 3 Euthanasia right to life, 24 Failure of representation accountability, 113 child poverty, 91, 92 constitutional obligations, 114, 116, 117 declaratory orders, 115, 116 education-related issues, 89, 90 good faith disagreement, 113 governmental discretion, 115, 117 institutional framework, 113 judicial enforcement, 113 see also Judicial enforcement judicial intervention, 114–17 see also Judicial intervention lack of government action, 112–15, 117, 156–9, 176, 177 lack of representation, distinguished, 91–2

lack of political will, 112 legislative inaction, 114 legislative/policy decisions, 113 nature of failure, 88, 89 political manifestos, 90 significance, 91 voters children’s interests, 88–91 preference, 117 priorities, 89 Financial issues children’s lack of resources, 83, 84 lack of experience/judgment children, 84 judges, 197, 198 limited contractual capacity, 84 limits on earning, 83, 845 Food see Right to food Freedom from torture, inhuman and degrading treatment female genital mutilation, 24 Freedom of thought, conscience and religion link with civil citizenship, 48 religious clothing, 65 religious symbols, 65 UN Convention on the Rights of the Child, 77 German Basic Law human dignity, 251 welfare law, 251, 252 Globalisation courts as a hegemonic/counter-hegemonic force, xxix Indian Supreme Court, 235 non-state actors, 157 Health see Right to health Housing see Right to adequate housing Human rights see also International human rights instruments extent of protection, 3, 181–3 female genital mutilation, 24 freedom from torture, inhuman and degrading treatment see Freedom from torture, inhuman and degrading treatment freedom of association, 48 freedom of expression, 48 freedom of thought, conscience, religion, 48, 65 human dignity, 13, 251 regional instruments, 3, 4 state compliance, 186, 191

290 Index Human Rights Act (1998) declarations of incompatibility, 115 statutory interpretation, 115 Implementation see Judicial enforcement; Judgment implementation India children’s rights NGO involvement, 65, 66 state responsibility, 65, 66 Children’s Rights and You, 65–6 Indian Constitution, 7, 12, 104, 137, 215, 235 judicial activism, 235 judicial conservatism, 235 judicial deference, 234 lack of judicial expertise, 200 social movements, 215 Information deficit adequate information, 200 adversarial method of adjudication, 193, 194 allocation of resources, 193, 195, 196 amicus curiae, 194, 195 dialogic approach, 195 education spending, 195, 196 expert witnesses, 195 identification of necessary information, 197 inability to acquire information, 193, 194 information requirements, 197 lack of knowledge, 194 presentation of evidence, 194, 196 public hearings, 195 research sources, 195 right to education, 196 sufficient information, 196, 197 third party interveners, 194 Inhuman and degrading treatment female genital mutilation, 24 Institutional incapacity adjudicating socio-economic rights, 191–3 flawed presumptions, 191, 193 information deficit, 192–7 see also Information deficit judicial attitudes towards children’s socio-economic rights, 192 lack of expertise, 192, 197–200 see also Lack of expertise limited judicial remedies, 192, 204–7 see also Judicial remedies nature of obligation imposed, 192 nature of rights, 192, 193 polycentric situations, 192, 200–4 see also Polycentric situations relationship with legitimacy of judicial enforcement, 191

Inter-American Court of Human Rights American Convention on Human Rights (ACHR), 36, 37 best interests principle, 13 civil and political rights, 36, 37 education, 37 healthcare, 37 individual autonomy, 13 minimum living conditions, 37 right to life, 36, 37 rights of individuals, 36 San Salvador Protocol, 37 socio-economic rights, 36, 37 International Covenant on Economic, Social, Cultural Rights (ICESCR) international law obligations, 246 limitation of rights, 250 maximum available resources, 196, 236, 247, 248 minimum core obligation, 35 Optional Protocol, 24 political/economic systems, 23 progressive realisation, 196, 236, 247, 248 realisation of rights, 236, 247–9 retrogressive measures, 248–50 socio-economic rights, 23 state obligations, 236 violation, 249 International human rights instruments children’s socio-economic rights, 32–3, 105, 106 civil and political rights, 36 importance/influence, 33 regional systems, 33, 36 role within constitutional systems, 33, 34, 35 socio-economic rights, 30–1 standard-setting, 33, 38 International Labour Organisation (ILO) child labour, 74 see also Child labour International law age of majority, 5 constitutional interpretation, 34, 35 international treaty obligations, 246 significance, 1 socio-economic rights, 32–4, 36–8 state responsibility, 34 treaty monitoring bodies, 27, 32, 33, 36–8 see also UN Committee on the Rights of the Child see also UN Committee on Economic, Social and Cultural Rights (ComESCR) Ireland children with autism, 61 civil and political rights, 166

Index 291 international law influence incorporation of international law, 35 international agreements, 35 legislative interpretation, 35 judicial enforcement, 135, 151, 152 judicial intervention action/inaction cases, 176 constitutional context, 173–5, 177–9 declaratory orders, 175 judicial encroachment, 173, 174, 177 mandatory orders, 173–6 rule of law, 178 mandatory orders, 205 mental disability, 243 parental representation, 59, 61 see also Parental representation property rights, 168 right to education, 243, 244 socio-economic rights, 158, 159, 162–5, 167–71, 177 special needs services, 153, 154, 239, 240 Irish Constitution breach of constitutional rights, 163–7 children’s rights, 142, 143 civil and political rights, 166 commutative justice, 164, 166, 167, 169, 202 commutative/rectificatory justice, 167 compensatory/commutative justice, 167 constitutional compliance, 173 Constitutional Court, 170, 171 constitutional supremacy, 152 directive principles of social policy, 141 distribution of public resources, 167 distributive justice, 164–7, 169, 202 economic, social and cultural rights, 169 free education, 165 human rights protection, 140, 141 judicial function, 148, 150–152 judicial independence, 147 judicial intervention, 150–2, 165, 166 judicial power, 147 judicial remedies, 152, 171 judicial review, 150–2, 165, 166 law/policy issues, 169, 170 parental rights, 142 positive obligations, 159 property rights, 168 right to education, 141, 142, 167 separation of personnel, 147 separation of powers, 143, 145–7, 152, 153, 166, 173, 174, 177, 178, 180 sovereignty, 146 state responsibility, 159 Judicial enforcement see also Judgment implementation; Judicial remedies allocation of resources, 245

child whose rights are subject to court order, 246, 250, 251, 253 comparative experience contrasting approaches, 135 Ireland, 135 South Africa, 135 constitutional amendment, 96 constitutional rights, 253, 254 constraining effects, 241 counter-majoritarian objection, 92, 113, 257 see also Counter-majoritarian objection courts as obstacles to enforcement of children’s socio-economic rights see Courts as obstacles to enforcement of children’s socio-economic rights declaratory orders see Declaratory orders dialogic form of review, 195, 254 disempowerment of children, 255, 256 efficacy see Efficacy of judicial function evolving obligations, 242 executive policy choices, 241, 242 failure of representation, 113 see also Failure of representation future information/knowledge, 242, 243 implications for other disadvantaged children whose rights are not before the courts, 246, 248–51 see Other disadvantaged children whose rights are not before the courts indirect effects, 189, 190, 244 judicial activism, 96, 125, 127 judicial constraints, 93 judicial diversity, 256 judicial perceptions of children, 256 judicial remedies see Judicial remedies justification, 114, 121, 162, 163 legitimacy, 186, 191, 256, 257 likelihood of enforcement, 212, 218, 219, 258 mandatory orders see Mandatory orders non-litigating children, 242, 244, 246, 258 participation/representation, 93 passivity of children, 256, 258 popular legitimacy, 215–18 see also Popular legitimacy proactive role, 256, 259 realisation of rights, 182, 183, 186, 188–91, 212, 219, 241, 242, 246, 255–9 resource implications, 245 reversal of decisions, 95, 96 right to education, 243, 244 see also Right to education

292 Index right to health, 243 see also Right to health separation of powers, 92, 257 see also Separation of powers services acquired by litigation, 242 serving some/disadvantaging others, 244–6 social movements, 213–15 see also Social movements state obligations, 242–4 subordination of needs, 242 undemocratic, 93 Judicial function see also Judgment implementation constitutional democracies, 155 determination of facts, 155 human rights protection, 181–3 Ireland, 148, 150, 152 judicial deference, 150, 181–3, 219, 234, 235 judicial encroachment, 134, 137, 139, 140, 156, 160–3, 171, 173, 174, 177, 179, 180 law-application function, 159 realisation of rights, 182, 183, 186, 188–91, 212, 219 rule of law, 156 separation of powers 182, 184, 185, 257, 257 see also Separation of powers socio-economic rights allocation of resources, 183 constitutional rights, 180–5 enforcement, 180 government inaction, 182, 184, 185 realisation of rights, 182, 183, 186 South Africa, 148–50 statutory interpretation, 138, 155, 159 Judgment implementation see also Efficacy Argentina, 207, 210 changes in public policy, 207 complex actions, 208, 209 compliance strategies, 212 contempt actions, 208 costs of compliance, 212 effective implementation, 212, 219 individualised remedies, 207 judicial incapacity, 258 level of difficulty, 207 mandatory orders, 207 see also Mandatory orders mediation procedure, 209 medium collective cases, 207, 208 monitoring function, 208 non-implementation government intransigence, 210–12 ignorance, 210 incompetence, 210, 211 oversight, 210

participation of parties, 208, 209 positive obligations, 207 realisation of rights, 182, 183, 186, 188–91, 212, 219 remedial structures, 208, 209 reporting requirement, 210, 211 structural cases, 208, 210 structural orders, 209 Judicial independence Ireland, 147 South Africa, 145 Judicial intervention see also Judgment implementation appropriateness, 259 conflict with government, 38, 39 constitutional provisions, 39–41, 134, 162, 163 constitutional supremacy, 134 declaratory orders, 40, 41, 115, 116 see also Declaratory orders departures from democratic political process, 122, 123 desirability, 259 exclusion from democratic policy-making process, 125 executive/legislative failures, 259 executive/legislative preferences, 38 failure of government, 39–41, 134, 156 implications for other disadvantaged children whose rights are not before the courts see Other disadvantaged children whose rights are not before the courts judicial activism, 96, 125, 127 judicial enforcement, 38, 39, 40 see also Judicial enforcement judicial flexibility, 41, 4 judicial review, 32, 40 see also Judicial review justification, 114, 121, 162, 163, 259 legitimacy, 186, 191 malfunction in the political market, 121–4 mandatory orders, 40, 41, 134, 139, 140, 155 see also Mandatory orders minority protection, 123 poverty, 130 proactive role, 256, 259 prohibition of specific activities, 139 right to health, 41 scope of judicial activity, 40, 93 statutory interpretation, 138 structural interdicts, 40, 41 supervisory jurisdiction, 40 unconstitutional legislation, 140 Judicial remedies ability to formulate appropriate remedies, 205 contempt of court, 161 damages, 205

Index 293 declaratory orders, 40, 41, 115, 116, 161, 175, 205 degree of control, 160 individualised remedies, 207 judicial empowerment, 205, 206 mandatory orders, 40, 41, 139, 140, 155, 160–3, 165, 172–6, 181, 205, 206 reading in, 205 realisation of rights, 205–7 structural interdicts, 40, 41 supervisory jurisdiction, 40, 160, 205 Judicial review see also ‘Core of the Case against Judicial Review’ constitutional rights, 32 counter-majoritarian objection, 82, 93–6, 98 see also Counter-majoritarian objection decision-making process, 100, 101 dialogic model/approach, 195, 208–10 distributive justice, 130 executive action, 101 outcome-based arguments, 100 paramajoritarian, 94 participation-orientated approach, 121 prejudice requirement, 128–30 process-based review, 122–8 process-related arguments, 100, 101 representation-reinforcing approach, 121–4, 128, 131 representative legislature, 102, 114 societal dialogue, 209 state responsibility, 32, 40 substantive value-based review, 120–2, 123–4 weak/strong form review, 40, 115 Lack of judicial expertise child labour, 200 complex evidence, 200 financial matters, 197–200 medical matters, 200 on-the-job experience, 198 policy matters, 197, 198 scientific/technical information, 199 socio-economic rights, 198 specialist information, 197–9 Litigation amelioration of social conditions, 230 children’s participation in legal proceedings see Children’s participation in legal proceedings constraints, 220 courts as obstacles to enforcement of children’s socio-economic rights, 220, 221, 234–41 see also Courts as obstacles to enforcement of children’s socio-economic rights drawbacks, 220, 221

empowerment, 220 law as social change, 221 partial nature of legal solutions, 220, 232, 233, 258 passivity of children, 220 realisation of rights, 220 risks, 220, 221 role accorded to children agenda-setting, 221 children’s views, 220 legal representation, 221 limitations of legal solutions, 221 litigation process, 221 strategic litigation see Strategic litigation symbolic goals, 230 Mandatory orders comparative examples, 205–6, 242 see also Ireland; Separation of powers; South Africa constitutional rights, 40 contempt of court, 161 declaratory orders, distinguished, 161 definition, 40 effects, 41, 161, 163 efficacy, 205–7 judicial deference, 173 judicial enforcement, 140, 155, 161, 163, 175, 181, 205–7 non-compliance, 41 requirements, 40 separation of powers, 161, 176 state obligations, 40, 132, 139, 160, 162, 172, 176 Margin of discretion legislative issues, 204 polycentric situations, 245 Media accident-related coverage, 86 children as media objects, 86 children’s lack of control, 84, 88 education-related coverage, 86 International Children’s Day of Broadcasting, 86, 87 media portrayals of children children as delinquents, 84 children as victims, 84 negative coverage, 84, 85 positive images, 86 newspaper coverage, 85, 86 Oslo Challenge (1999), 87 UN Committee on the Rights of the Child, 86 UNICEF initiatives, 86, 87 Migrants economic migrants, 20 non-citizens, 20 parental representation, 60 see also Parental representation

294 Index Millennium Development Goals child-specific, xviii, 92 child mortality, 92 Minorities adequate representation, 126 children, 7, 20, 55, 118–19, 128 common duty of representation, 120 decisional majority/minority, 118, 119 disenfranchised groups, 118, 119 domination, 120 equal concern and respect, 120, 129, 130 exclusion form decision-making, 118 geographical outsiders, 125 insular minorities, 123 judicial review protection, 119, 120 lack of influence, 118, 119 lack of political power, 125 national minorities, 123 prejudice, 128–30 racial minorities, 123 religious minorities, 123 topical majority/minority, 118, 119 virtual representation, 121 see also Virtual representation wilful indifference towards, 129 Moral rights children’s rights, 105, 106 relationship with legal rights, 25, 106 welfare rights negative/positive duties, 25, 26 Non-citizens asylum-seekers, 20 discrimination, 20 disenfranchisement, 20 exclusion, 20 migrants, 20 representation, 20 socio-economic rights-related needs, 20 Non-state actors deregulation, 157 globalisation, 157 horizontal application, 21 privatisation, 157 Older persons age discrimination, 17 political influence, 17 Ombudspersons legal action, 76, 77 limitations, 76, 77 powers, 76 protecting children’s interests, 75 resources, 76 use of media, 76 Other disadvantaged children whose rights are not before the courts best interests, 253 see also Best interests principle

lack of available resources, 250, 251 realisation of rights, 246, 249, 250 subordination of needs violation of rights, 254 withdrawal of resources, 246, 248–51 Parental representation absence of parents/guardians, 60 best interests, 56–8 see also Best interests principle children in care, 60 children’s interests generally age-related factors, 63 child poverty, 62 children with disabilities, 61, 62 effective representation, 63, 64 family autonomy, 62, 63 law/policy-making processes, 63 limitations, 61 other people’s children, 62, 246 parental solicitude, 63 parents as spokesperson, 61 refusal to recognise shared interests with children, 62 voting patterns, 63 migrant workers, 60 own children’s interests child benefit, 58 child labour, 59 children’s health, 57, 58 compulsory education, 59 different children of the family, 57 disadvantaging of children’s rights, 59 divergent interests, 58 equal attention, 57 family decision-making, 57 family power relationships, 57 family privacy, 58 free-riding, 58 internally displaced children, 60 learning disabilities, 58 love-based interests, 57, 58 overlapping interests, 56 non-representation, 59, 60 parental autonomy, 58, 59 prejudicial attitudes, 57 self-protective factions, 61 shared interests with children, 57, 58 social housing, 58 traditional presumption, 56, 57 parents banned from voting, 59, 60 role of parents 56 socio-economically disadvantaged parents, 59 Participation in legal proceedings see Children’s participation in legal proceedings

Index 295 Participation rights see also Democratic decision-making allocation of resources, 79 citizenship, 78, 79 consultative processes, 79, 80 decision-making processes, 77, 79–83 determining factors, 80 effective participation, 83 electoral systems, 72 enhancement of democracy, 78 exercise of political power, 77 justifications, 78 local youth parliaments, 81 poverty, 77, 78 right to education, 78 socio-economic rights and the ‘non-political’ sphere, 78 UN Committee on the Rights of the Child (ComRC) 79–81 voting, 72, 81, 82 youth wings/political parties, 72, 73 Paternalism best interests principle, 13 see also Best interests principle constraints on children, 12 irrationality test, 12 judicial views, 13 legal intervention, 12, 13 liberal paternalism, 12, 224 persons with disabilities, 18 Persons with disabilities children, 20, 48 discrimination/disablism, 18, 19 human rights law, 18 International Convention on the Rights of Persons with Disabilities, 18 invisibility, 18 paternalism, 18 right to education, 61, 243 socio-economic rights, 18–19 voting, 18 vulnerability, 18 Polycentric situations adjudication, 200–4 administrative implications, 203 allocation of economic resources, 201, 202 budgetary consequences, 201, 203, 245 complex repercussions, 201, 203 constitutional adjudication, 203, 204 constitutional values/norms, 203 judicial caution, 204 judicial power, 204 judicial proceedings adversarial nature, 201 triadic nature, 201 limited amounts of evidence, 201 margin of discretion, 245 remedial flexibility, 245 social consequences, 203

socio-economic rights, 201–3 South Africa, 201, 203, 254, 255 state compliance, 209 Popular legitimacy challenging judicial decisions associated costs, 217, 218 case authority, 217 case salience, 217 non-compliance, 216, 217 public policy preferences, 216, 217 public support, 217 tolerance intervals, 217, 218 voter opinion, 218 children protection of children, 216 unpopular groups, 216 implementation of decisions, 215 media debate, 215 public discussion, 215 public opinion, 215, 216 Poverty alleviation of poverty, 130 judicial intervention, 130 linked to disability, 20 partial nature of legal solutions, 220, 232, 233, 258 political marginalisation, 130 poorer children, 223, 225, 229 state responsibility, 19 stigmatisation, 19 Prisoners socio-economic rights, 19 state responsibility, 19 voting rights, 19 Property see Right to property Remedies see Judicial remedies Representation best interests, 222, 223 see also Best interests principle children’s participation in legal proceedings see Children’s participation in legal proceedings; Litigation Children’s Public Defenders, 224 democratic representation see Representation of children in democracy elected representatives see Elected representatives Ely’s ‘duty of representation’ equality principle, 120 majority decision-making, 120 pluralist electorate, 120 failure of representation see Failure of representation guardian ad litem, 222, 224

296 Index legal proceedings amicus curiae, 194, 195 differing rights-related values, 224 dissimilar social backgrounds of lawyers and children, 225, 226 focus on adult rights, 226 focus on rights on “everyone”, 227 inability to supervise legal representatives, 224, 230, 231 initiated proceedings, 224 initiation of proceedings, 223, 224 lack of maturity, 222 legal incapacitation, 224 limited contact with lawyers, 225 prioritisation of rights, 224, 225, 232 socio-economic spectrum, 229, 230 urban/rural rights-holders, 230 minorities, 120, 121, 126 ombudspersons, 76, 77, 224 see also Ombudspersons parental representation, 56–64 see also Parental representation representation by adults see Representation by adults virtual representation, 49–51, 54, 55, 69–71 see also Virtual representation Representation by adults adult interests, 55, 65, 68, 69, 223 adult voting, 66 agenda-setting, 68 child care issues, 66 child labour, 67 child poverty, 68 children’s needs, 64 divisive social issues freedom of thought, conscience and religion, 48, 65, 77 interpreting children’s views, 67, 68 NGO involvement, 65–7 parental representation, 56–64 see also Parental representation pressure groups, 66, 67, 69 prioritisation of children’s interests, 65 reproductive rights of minors, 65 selective representation, 65 shared freedoms with children, 64 shared interests with children, 65 social insurance, 68, 69 welfare benefits, 68, 69 Representation of children in democracy child lobby groups see Child lobby groups children’s participation in legal proceedings see Children’s participation in legal proceedings economic resources/economic power, 83, 84

elected representatives see Elected representatives failure of representation see Failure of representation indirect representation, 72 judicial review, 71 lack of adequate representation, 128, 131, 132 majority decision-making processes, 92 media control, 84–7 parental representation, 56–64 see also Parental representation participation rights see Participation rights prejudice against children, 52, 53 protection within democracy, 49 representation by adults see Representation by adults representative government, 49 social media, 87, 88 unpopular minorities, 53 see also Minorities virtual representation, 49–51, 54, 55, 69–71 see also Virtual representation Representation of children in legal proceedings see also Litigation Children’s Public Defenders, 224 guardians ad litem, 222, 224 lawyers, 222–3, 224–5 next friend, 222 Right to adequate housing children’s vulnerability, 15 evictions, 40 homelessness, 15, 16 impact of violations, 15–16 state responsibility, 40, 108 Right to education developmental needs, 16 employment prospects, 16 impact of violations, 16 Ireland, 141, 142 poorer children, 225 Right to food impact of violations, 15 malnutrition, 15 violations, 15 Right to health constitutional right, 41, 42 international human rights law, 42 judicial intervention, 40, 41 poor living conditions, 132 preferential treatment, 132 state responsibility, 41, 42 vaccination, 132 Right to life abortion, 24 euthanasia, 24 human rights protection, 3

Index 297 individual political agendas, 24 socio-economic aspects, 4 unborn, 3, 4 Right to property ideological purposes, 24 indigenous peoples, 24 Right to social security Argentina, 4 Canada, 250 Colombia, 14, 132 delivery, 78 right to social services, 205 Right to work children, 74 Separation of powers checks and balances, 138, 143, 145 constitutional rights, 32, 134, 135 contemporary constitutional democracies, 137 democratic decision-making, 44 see also Democratic decision-making doctrine balancing version, 136, 166, 181 efficacy/functional separation, 136, 166 erosion, 139 governmental arrangements, 136–8 governmental powers, 136 ideal type, 137, 138, 144 normative character, 136 purposive character, 136 rule of law, 136, 181 enforcement of socio-economic rights, 134, 135, 137, 139, 140 growth of administrative state, 139 judicial encroachment, 134, 137, 139, 140, 156, 160–3, 171, 173, 174, 177, 179, 180 judicial enforcement, 92, 257 judicial function see Judicial function mandatory orders, 140, 160–1 see also Mandatory orders segregation of agencies, 137 socio-economic rights, 139–40, 156–60 see also Socio-economic rights Social media accessibility, 87 democratic activity, 87 influence, 88 Internet access, 88 Twitter, 88 web-based technologies, 87 Social movements India, 215 influence, 213–15 popular support, 213 South Africa, 213, 214

Socio-economic rights see also Socio-economic rights holders acceptance of existing distributions, 157 action/inaction dichotomy, 157 adjudication, 159, 163 see also Litigation best interests, 251–3 see also Best interests principle budgetary implications, 107 characterisation comparative approach, 22, 23 indeterminate nature, 24, 30–2 inherently ideological, 23, 24 negative/positive attributes, 24–8 programmatic nature, 139 resource-dependent, 201 child poverty, 232, 233 see also Child poverty common law, 21, 22 comparisons civil and political rights, 22, 23, 24–6, 28 economic, social and cultural rights, 22 competing rights, 106 constitutional provisions, 21–3, 33 constitutional rights, 156, 162, 163, 174, 175, 177–80, 203 constitutionalisation, 104 cost-related issues, 28, 29 duty to respect, 246, 247 entitlement to state provision, 236, 237 flawed presumptions, 24, 257 funding priorities, 106 government inaction, 156–9, 176, 177 immediate obligations/directly enforceable entitlements, 235, 237–8 inaction/inadequate action, 157 incorporation into domestic law, 106 increased constitutionalisation of children’s socio-economic rights, xv–vi international human rights protection, 22, 105, 106 judicial enforcement, 158, 159, 162, 163 see also Judicial enforcement judicial function allocation of resources, 183 constitutional rights, 180–5 enforcement, 180 government inaction, 182, 184, 185 realisation of rights, 182, 183, 186 justiciability, 24, 28, 30–2, 104 legislation, 21, 22 liberal conception, 25 meaning, 21 negative obligations, 157–9 non-state actors, 157 positive obligations, 156, 158–60 public resources, 106, 107 review of legislative/executive action, 156

298 Index right to adequate housing, 15, 16, 40, 108 see also Right to adequate housing right to education, 14, 16, 106–8 see also Right to education right to food, 15 see also Right to food right to healthcare, 176 see also Right to health right to shelter, 107, 108, 227 right to social security see also Right to social security scope, 21 social exclusion, 233 state obligations/responsibility, 24, 25, 27, 29, 106, 108, 157 status quo neutrality, 157 use of resources, 24, 28–30 violations, 1, 21, 157, 159, 160, 177 Socio-economic rights-holders adolescents, 14 adults, 14–16 children inevitable dependence, 10, 11 limited capacity, 14 limited consideration, 8 linkage with parent’s socio-economic rights, 9 social minority groups, 20 see also Minorities children as rights-bearers, 1, 7, 10–14 constitutional rights, 14 children with disabilities, 20 decision-making powers, 11–13 see also Democratic decision-making differential rights, 14 discrimination, 18–21 decisions/policy/law-making bodies, 7 exclusion societal institutions, 7 family status, 8, 9 fundamental rights, 14 gender discrimination, 9 marginalisation, 19 older persons, 17–18 persons with disabilities, 18–19 prisoners, 19 resources delivery, 9, 10 entitlement, 8, 10 self-determination, 12 sexism, 9 systemic inequality, 21 vulnerability, 10–13, 16, 20 women, 16–17 South Africa access to health services, 242 AIDS/HIV treatment, 154, 155, 213, 214, 242

Bill of Rights, 148 budgetary allocation, 255 children detention, 51, 52 right to basic healthcare services, 154 right to shelter, 107, 108, 227 right to social services, 205 court-mandated mediation, 209 disputes with budgetary implications, 201 Human Rights Commission, 214 judicial deference, 234, 235 judicial enforcement, 135, 149, 154, 213, 214, 234 judicial expertise financial evidence, 198, 199 scientific/technical matters, 199 specialist information, 199 judicial remedies, 149, 154, 172, 173, 176, 179 judicial review, 149, 150 mandatory orders, 172, 176, 242 policy choices executive policy choices, 241, 242 interpretation, 241, 242 polycentric situations, 201, 203, 254, 255 rule of law, 213 socio-economic rights, 33, 34, 141, 153, 158, 162, 171, 172, 177, 234, 235, 236, 238, 239 state compliance with Constitutional Court rulings, 213, 214, 215 Treatment Action Campaign, 213, 214 South African Constitution check and balances, 143, 145 child-specific rights, 142 constitutional amendments, 150 Constitutional Court decisions housing rights, 227 human rights, 140 international law influences, 34, 35 judicial balancing, 185 judicial deference, 234, 235, 238 judicial encroachment, 179 judicial remedies, 172, 176 polycentric situations, 201 right to health, 213, 241, 242 separation of powers, 143, 144, 148–50, 162, 171, 179 state obligations, 199 constitutional obligations, 150, 179 constitutional supremacy, 148 cooperative government, 144 functional independence, 144 housing rights, 227 human rights protection, 140 interpretation, 34, 35, 235 judicial authority, 148–50

Index 299 judicial deference, 150 judicial encroachment, 177, 179 judicial function, 148–50 judicial independence, 145 judicial intervention, 171, 172 judicial review, 149, 150 minimum core, 235 positive obligations, 158, 159 right to have access to health services, 141, 153, 154, 235 right to have access to adequate housing, 108, 141, 235 separation of personnel, 145 separation of powers, 143–5, 153, 171, 172, 177, 179, 180 socio-economic rights, 33, 34, 141, 158, 162, 171, 172, 177 South African Centre for Child Law, 228 State responsibility constitutional rights, 31, 32 international law, 34 judicial review, 32 obligation to fulfil, 27, 32, 39–42 obligation to protect, 27, 32, 39–41 obligation to respect, 27, 32, 39–41 right to adequate housing, 40, 108 right to health, 41, 42 socio-economic rights, 24, 25, 27, 28 treaty monitoring bodies, 27 Strategic Litigation see Judgment implementation partial nature of legal solutions, 220, 232, 233, 258 poverty law, 228, 229 public interest litigation, 229, 230 strategic litigation, 228 see also Litigation Structural interdicts see Supervisory jurisdiction Supervisory jurisdiction see also Mandatory orders appropriateness, 211 comparative examples, 205–6, 208 definition, 40 separation of powers, 139, 160 structural interdicts, 40–1, 254 Torture see Freedom from torture, inhuman and degrading treatment Tyranny of the majority benevolent nature, 119 decisional minorities, 119 expression of individual opinions, 116 good faith, 118, 119 juvenile justice, 116, 117 legislative decisions, 119 majoritarianism, 120

matters of common concern, 116 topical minorities, 119 UN Committee on Economic, Social and Cultural Rights (ComESCR) limitations on ICESCR rights, 250 minimum core obligation, 35 progressive realisation, 247 retrogressive measures, 248–50 UN Committee on the Rights of the Child (ComRC) best interests, 251–3 see also Best interests principle child labour, 74, 75 jurisprudence, 32, 74, 75 lack of adequate resources, 251 participation rights, 77, 79–81 realisation of rights, 248 withdrawal of resources, 250 UN Convention on the Rights of the Child (CRC) age of majority, 4 best interests, 251–3 see also Best interests principle childhood, 2–4 complaints mechanism, 228 constitutional rights, 236 discrimination, 19 implementation, 247 international law obligations, 246 participation in legal proceedings, 226 participation rights, 77 ratification, 106 realisation of rights, 236 scope, 13 state obligations, 236, 247, 248 unborn, 2, 3 utilisation of resources, 247, 248 UN Human Rights Committee rights of the child, 36 Unborn inclusion within definitions of ‘child’, 2, 3, 4 protection, 3 right to life, 3, 4 United States of America desegregation in schools, 230 evaluation of evidence, 200 judicial expertise, 200 public education, 229, 230 public interest litigation, 229, 230 US Constitution allocation of hurts/ benefits, 130 clause-bound interpretivism, 120, 121 decision-making processes, 121 minority interests, 121 procedural fairness, 121 procedural rights, 121 separation of personnel, 145

300 Index US Supreme Court concern about departures from the democratic political process, 122–3 international law influence, 35, 36 suspect class jurisprudence, 126–7 Warren Court, 124 Virtual representation communion of interests/sympathies, 49–51, 54, 55, 69, 71 effective representation, 70, 71 minority interests, 121 parental representation, 69 sufficient sense of empathy, 69, 70 Voting family vote system, 72 majority voting, 99 parental representation, 63 plural voting, 72 prisoners 19

proxy votes, 72 right to vote, 81, 82 voting age ages of enfranchisement, 5–7 link with enforcement of rights, 5 full enfranchisement, 6 local elections, 6 lower age groups, 72 minimum age, 5 Women’s rights child-bearing, 16 child care, 16 decision-making processes, 17 economic/social power, 17 enfranchisement, 17 individual well-being, 17 recognition, 16 social subjugation, 17 socio-economic rights, 16–17