Rethinking Childhood Contributory Negligence: 'Blame', 'Fault' - but what about Children's Rights?

Macfarlane, Lesley-Anne

Abstract

Article 3 of the United Nations Convention on the Rights of the Child provides that the child’s ‘best interests… shall be a primary consideration’ in all actions concerning the child. The United Nations Committee on the Rights of the Child has indicated something of the magnitude of the concept of best interests, describing it as ‘a substantive right’, ‘a fundamental interpretative legal principle’ and ‘a rule of procedure’. In many areas of domestic law the child’s best interests are discernible as a consideration when decisions are made that have an impact on children. However, the child’s best interests are not recognised as being of primary, or indeed of any, consequence in determinations about childhood contributory negligence. Further, judgments about the contributory negligence of the young often indicate inconsistent, and unpredictable, approaches and outcomes concerning children. This article contextualises the issue of childhood contributory fault within wider UK law and analyses the position of children in the field of delict/tort with reference to two high profile decisions, Probert v Moore and Jackson v Murray. A number of options for reform of the law, practice and policy are proposed – including a Children’s Civil Injuries Compensation Scheme – that would render the way the legal systems in the United Kingdom address the contributory negligence of children more compliant with Article 3.

Citation

Macfarlane, L. (2018). Rethinking Childhood Contributory Negligence: 'Blame', 'Fault' - but what about Children's Rights?. Juridical Review, 75-97

• Journal Article Type: Article
• Acceptance Date: Feb 16, 2018
• Publication Date: 2018-06
• Deposit Date: Feb 23, 2018
• Publicly Available Date: Jul 1, 2019
• Journal: Juridical review
• Print ISSN: 0022-6785
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Issue: 2
• Pages: 75-97
• Keywords: United Nations Convention on the Rights of the Child, Article 3, best interests of the child as a primary consideration, delict/tort, contributory negligence
• Public URL: http://researchrepository.napier.ac.uk/Output/1049529