Children's rights as aspiriational rights: promising much, obliging nothing?

Abstract

The 'Child Wellbeing and Safety Act' 1995 (Vic) sets out principles for the provision of children's services. These principles stress the importance of children reaching their full potential, and the promotion of their safety, health, development, education and wellbeing. The principles do not, however, 'create in any person any legal right or give rise to any civil cause of action.' By contrast section 1 (1) of the 'Childcare Act' 2006 (UK) imposes a duty on local authorities to improve the physical, mental, emotional, social, and economic wellbeing of children, and their contribution to society. These laws are informed by documents such as the 'United Nations Convention on the Rights of the Child'. The question is why children's rights often appear as statements of principle rather than formally enacted legal rights. Perhaps the United Kingdom example is unusual in this regard. This paper explores the extent to which rights claimed by and for children often appear within "aspirational laws". Harvey (2004) argues that such laws can be useful contributions to legal and cultural change. I will question whether such aspirational laws marginalise children's rights. A comparison of children's services in the UK and Australia will be undertaken to test if a legal framework based on obligation rather then aspiration alters the position of children with respect to their well being.