Anne McGillivray

Children's Rights, Paternal Power and Fiduciary Duty: From Roman law to the Supreme Court of Canada

Parental rights originate in patria potestas, the proprietary power of the Roman father, and its incidents of custody, control and corporal punishment. Parental rights as proprietary rights, as rights over another, cannot co-exist with childrens rights. What, then, are parental rights in the age of childrens rights? This Essay surveys the influence of Roman doctrine on modern law in and through the Supreme Court of Canada. The court acknowledges childrens rights, views proprietary rights over children as a thing of the past and recognizes custody as the childs right, not the parents. Yet the court vitiated the fiduciary standard for parents, limited state parens patriae jurisdiction and upheld two of the three incidents of patria potestas. By making childhood an excuse for avoiding principled rights analysis, conflating adult interests with childrens rights and confusing assault with touch, the court upheld the proprietary rights of corporal punishment and control. If parental rights are understood as rights correlative to parental fiduciary duty, and if rights are seen as markers of relationship rather than its antithesis, then the law is rid of archaic notions of parental rights. The way is open to substantive judicial and social engagement with the rights of the child.

Tales of the Apocalypse: The Child’s Right to a Secure Climate

All rights of children equate with the right to a life-sustaining biosphere. Climate change disproportionately harms children and profoundly threatens their future. Dystopian futures portrayed in cli-fi films illustrate the dangers but also may contribute to paralysis in the face of rapidly increasing global warming. Intergenerational equity frames our duty to future generations. A child-led lawsuit, if successful, will hold the state to its duty to safeguard natural resources. A new corporate paradigm is essential. Central to all strategies is hearing the child.

The Long Awaited: Past Futures of Children’s Rights

This paper is an invitation to re-think how we think about the future of children’s rights. Utopias, science fictions, and the trajectories of history are invoked in futurist imaginings. Utopian thinking across centuries has both marked and marred social interventions into the conduct of childhood. Visionaries from More to Comenius to H.G. Wells have to a greater or lesser extent focused on childhood as means to a utopian end. While utopianism has deeply harmed children, the Convention on the Rights of the Child is in some ways indebted to Wells’s imagined World State. The long history of childhood discloses intimations of rights millennia before rights existed. It also discloses how doing good for children often has gone terribly wrong due to failure of the imagination. Science fictions are rapidly becoming fact. Rights thinking has failed to keep pace with developments profoundly affecting children and the conduct of their childhood.