Conceptualising children's wellbeing and children's rights

Children's rights

For those working in the field of children's rights, the UNCRC provides a legal touchstone as an internationally agreed set of rights for children. Adopted by the United Nations General Assembly in 1989, the UNCRC has been ratified by nearly all States Parties. According to the UNCRC and international law, ratifying the Convention means that States Parties are obligated to implement the UNCRC (see Article 4, UNCRC). Accountability to the UN is largely through regular reports to the United Nations Committee on the Rights of the Child. Optional Protocol 3 to the UNCRC provides an additional accountability mechanism for children, groups of children or their representatives to bring a communication (a complaint) to the UN Committee under certain circumstances.

The UNCRC sits within the more general framework of human rights law (with other conventions and convenants also applying to children). The UNCRC broadly addresses children under the age of eighteen (unless majority is attained earlier, Article 1) and covers a wide range of issues, from justice to health, within its fifty-four Articles. Key principles are recognised in the UNCRC: non-discrimination (Article 2); a child's best interests must be a primary consideration in all actions concerning children (Article 3); a child's rights to survival and development (Article 6); and a child's right to express views freely in all matters affecting the child (Article 12). These are recognised as over-arching principles but there is no hierarchy of rights: the rights are inalienable and indivisible (UN Committee on the Rights of the Child, 2003).

Such claims fit with philosophical conceptualisations of rights, particularly as developed from the Enlightenment and Liberal Theory. Locke (Reference Locke and Cox1982), for example, conceptualised rights as a particular relationship between the individual citizen and the state. State intervention needed to be legitimised and constrained, in order to protect individuals' autonomy and freedoms. Rights were God-given and thus inalienable and universal (at least for adult men). Through the philosophical development of liberal theory, rights became ‘political trumps’ (Dworkin, Reference Dworkin1997: xi) and thus claims that are non-negotiable and have to be met. However, this philosophical heritage also brings with it potential problems. For example, rights have been accused of incorrectly conceptualising society as formed from contractual or associational relationships and of perceiving such relationships as formed by individuals who are autonomous, rational and competent (e.g., Arneil (Reference Arneil, Archard and Macleod2002) and Sandel (Reference Sandel1982) for such criticisms). Instead, the critics suggest: that people should be recognised as social beings; that society is based on mutual self-interest, relationships and associations; and that all people are inter-dependent and vulnerable, with rationality and competence being irrelevant criteria (e.g., see Herring, Reference Herring and Freeman2012; Fineman, Reference Fineman2008, Reference Fineman2010/11).

Beyond such philosophical considerations, the UNCRC itself has been subject to criticism. For example, it has been accused of promoting a particular view of childhood – one from the Minority World/Global North. This view of childhood emphasises children as vulnerable, dependent, belonging within their families and lacking capacity. This has damaging consequences for children who do not fit that view, such as children with caring responsibilities, children working outside the home or those who are ‘street children’ (e.g., Ennew, Reference Ennew and Franklin1995; Wells, Reference Wells2015). The individuality of children's rights, and particularly their participation rights, is said to undermine more collective cultures (e.g., Valentin and Meinert, Reference Valentin and Meinert2009). The UNCRC's stated provisions are accused of being overly vague – e.g. how to define children's best interests (Kelly, Reference Kelly1997) – and thus subject to considerable (adult) discretion. The UNCRC's coverage is arguably inadequate (e.g., child marriage is not explicitly addressed) and it may not be capable of addressing emerging issues, such as digital media (Veerman, Reference Veerman2010). Amendments have been made to the UNCRC and additional, optional protocols potentially extend the coverage of children's rights. Nonetheless, the UNCRC does represent a political compromise and a particular articulation of rights.

Children's rights have been of interest to the ‘new’ sociology of childhood, because of the latter's interest in children as social actors in their families and communities (e.g., see Prout and James, Reference Prout, James, James and Prout1990; Mayall, Reference Mayall2000). Focusing on children as the unit of analysis, rather than families or households, respects and values children in their current lives – and not solely as human capital and societal assets for the future (Tisdall and Punch, Reference Tisdall and Punch2012). The ‘new’ sociology of childhood has grown, attracting a wider group of disciplines and becoming more generally termed ‘childhood studies’. The research base has similarly grown, encompassing more structural interests ranging from the leading research by Qvortrup and colleagues (e.g., Qvortrup, Reference Qvortrup, Qvortrup, Corsaro and Honig2011; Kjørholt and Qvortrup, Reference Kjørholt and Qvortrup2011) to a plethora of micro-studies seeking to engage directly with children and young people for their own experiences, views and meanings (see James, Reference James2010). While there are more quantitative approaches, within a broad definition of childhood studies, qualitative methods have dominated.

Thus both the conceptual and academic genealogies of children's wellbeing and children's rights have some overlap but also differ substantially. As Lundy (Reference Lundy, Ben-Arieh, Casas, Frønes and Korbin2014) and Camfield and colleagues (Reference Camfield, Streuli and Woodhead2009) characterise, children's wellbeing has a strong academic heritage with a predominance of quantitative methods from a range of academic disciplines. This academic interest has come together with various policy interests to develop more expansive, comparable indicators between individuals, groups and nations. Children's rights do not have this quantitative measurement heritage. Instead, they have philosophical and legal histories, which were solidified in international law by the UNCRC in 1989, and have been taken up by a range of disciplines that can be grouped together as ‘childhood studies’ and the emerging ‘children's rights studies’ (Vandenhole et al., Reference Vandenhole, Desmet, Reynaert and Lembrechts2015).

The Scottish example: the Children and Young People (Scotland) Act 2014

Children's rights and children's wellbeing, as organising frameworks for children's policy, have both gained prominence in Scotland. The Scottish Government (which at this time was formed by the Scottish Nationalist Party) made improving children's lives a major plank of its political programme. The Scottish Government put forward children's legislation in 2013, with these words:

The quotation exemplifies the high profile of children's rights in Scottish Government rhetoric. Scotland is obliged to implement the UNCRC (Scotland Act 1998, Schedule 5, Section 7(2)(a)) because the United Kingdom (UK) ratified the UNCRC in 1991. The Scottish Government thus has domestic, as well as international, legal responsibilities to implement the UNCRC. However, in the UK and Scottish legal systems, the UNCRC is not directly justiciable in domestic courts. Children's rights are gradually gaining a stronger legal basis in Scottish law and policies; directly, as they are written into legislation, or indirectly, as domestic and European courts refer to the UNCRC in their decisions.

When the Welsh Assembly put forward a children's rights scheme,Footnote ⁵ this inspired the Scottish Government to consider how it could demonstrate its commitment to children's rights. The Scottish Government (2012) decided to produce a large bill that would bring together children's rights with practical implementation. The result was the CYP 2014 Act, which begins with Part 1 on the ‘Rights of Children’. Section 1(1) sets out the duties on Scottish Ministers to:

1. (a) keep under consideration whether there are any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC requirements, and

2. (b) if they consider it appropriate to do so, take any of the steps identified by that consideration.

Scottish Ministers will have to report to the Scottish Parliament, publish their report and state future plans. The Act therefore requires Scottish Ministers to be transparent and accountable. But the duties have little substantive obligation. Public authorities – including those who provide services to children and their families, such as local authorities and health boards – have no similar duty applied. A public authority will have a duty to report on ‘what steps it has taken in that [three year] period to secure better or further effect within its areas of responsibility of the UNCRC requirements’ (S.2(1)).

Local authorities and health boards do have stronger duties, in relation to children's wellbeing. Part 3 of the Act requires a local authority and the relevant health board to prepare a children's services plan for every three year period (S.8). The plan will need to ensure that children's services better safeguard, support and promote the wellbeing of children in the area, along with better integration of services, meeting needs and making the best use of resources (paraphrased from S.9(2)(a)). The plan must be kept under review and must be implemented ‘so far as reasonably practicable’ (S.12(1)). Every year, a report must be published on what has been provided, how aims have been achieved and the wellbeing outcomes (S.13(1)).

Thus, under Part 1, a local authority or health board will have an obligation to publish a report. But they can report that they have done nothing regarding children's rights, beyond what is already required under domestic legislation, and they will still meet the 2014 Act's legal requirement. In contrast, a local authority or health board must seek to plan and deliver for children's wellbeing and report on children's wellbeing outcomes. There is a requirement, on local authorities and related service providers, to implement this obligation to safeguard, support and promote children's wellbeing.

The 2014 Act does not give a definition of children's wellbeing itself. The Government's Policy Memorandum for the Children and Young People (Scotland) Bill states: ‘It can mean different things, ranging from mental health to a wider vision of happiness’ (Scottish Parliament, 2013: para. 58). In the next paragraph, wellbeing is ‘defined’ by the eight SHANARRI indicators, which are said to ‘capture the full range of factors that affect a child's and young person's life and reflect the Scottish Government's view that it is essential for services to take a holistic approach’ (para. 59). SHANARRI is an acronym for eight wellbeing indicators – Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible and Included – developed through a Scottish Government advisory group and promoted since 2005 as part of the Ministerial Vision for children's services.

Wellbeing, and the SHANARRI indicators, are central to the most recent attempt in Scotland to improve inter-agency, inter-professional co-operation: the initiative Getting it Right for Every Child (GIRFEC). This initiative seeks to address criticisms regarding single service models, to ensure children and their families receive well-timed and appropriate services. GIRFEC has a strong emphasis on early stage/age intervention and prevention, beginning with universal services. Services should provide what children and their families really need, rather than merely what is available. It specifically promotes a shift away from single professional, sequential and deferred referral approaches, towards local support partnerships, integrated assessments and quicker solutions (Stradling and Alexander, Reference Stradling, Alexander, Hill, Head, Lockyer, Reid and Taylor2012).

GIRFEC thus fits with other policy trends in Scotland (see Tisdall and Hill, Reference Tisdall and Hill2011; Tisdall and Davis, Reference Tisdall, Davis and Smith2015) in children's policy that include investing in young children and their families and focusing on outcomes rather than processes. Local authorities, for example, are now held accountable to the Scottish Government through ‘single outcome agreements’ (Scottish Government and CoSLA, 2007). High-level outcomes are set out in these agreements, moving away from focusing on processes to focusing on results. GIRFEC fits well with this outcome focus.

How GIRFEC fits, however, with children's rights is more problematic. Partially in response to critique and questions, the Scottish Government (2013) published a report addressing the relationship between GIRFEC and the UNCRC. As analysed by Tisdall and Davis (Reference Tisdall, Davis and Smith2015), the report describes the relationship in four ways:

1. 1 children's rights contribute to a broader framework about improving children and young people's life chances;

2. 2 the UNCRC is the foundation of GIRFEC;

3. 3 the UNCRC and GIRFEC are aligned and linked; and

4. 4 GIRFEC is the practical implementation of children's rights.

The report predominantly explores the third way (alignments and linkages), mapping thoroughly how GIRFEC's principles and core components match particular UNCRC Articles. However, of the four relationships, the third is the weakest. Further, the report does not explore either children's wellbeing or children's rights conceptually or in depth: it repeats the description of children's wellbeing using the SHANARRI indicators rather that defining the concept; the report refers to short forms of the UNCRC Articles, without an underlying discussion of children's rights. The mapping thus does not help explicate the conceptual relationships between children's rights and wellbeing.

Tisdall and Davis conclude: ‘The report provides an intriguing analytical contribution to the relationships between children's rights (via the UNCRC) and children's wellbeing but does not resolve them conclusively’ (Reference Tisdall, Vandenhole, Desmet, Reynaert and Lembrechts2015: 222). It leaves the strong potential for two parallel policy agendas for children's policy and practice in Scotland, with the children's rights framework articulated in Part 1 of the CYP Act 2014, with weak implementation duties, and with children's wellbeing in a more dominant position set out in Part 3 of the Act, and having a close alignment with the overarching children's services agenda, GIRFEC.

Weighing up children's rights and children's wellbeing: which best frames policy?

While efforts are already being undertaken to resolve some of the apparent overlaps and contradictions created by the CYP 2014 Act (e.g., how to rationalise reporting requirements; how to include children's rights in children's wellbeing indicators), the Act forefronts the potential tensions between children's rights and children's wellbeing. Each concept has its advantages and disadvantages and the concepts can have varied relationships with each other. But the concepts are not the same and nor are the resulting policy frameworks and, ultimately, practice.

However it is defined, children's wellbeing benefits from its genealogy in its emphasis on a preventive and asset-based approach. Rather than focusing solely on negative outcomes, like illness or child poverty, it also includes positive outcomes and can consider what assists as well as what hinders children's wellbeing. It is thus aspirational, not settling for minimum standards, with the potential to maximise children's wellbeing. The UNCRC, in contrast, sets minimum standards for children's rights across all ratifying countries. Article 41 of the UNCRC does allow for countries to have and maintain higher standards. There are also maximising aspects of the UNCRC, such as the concept of ‘progressive realisation’ in health (Article 24(4)) and education (Article 28(1)) and goals that are ambitious and expansive (such as education being directed to developing the child's personality, talents and mental and physical abilities to their fullest potential (Article 29(1)(a)) (see Redmond, Reference Redmond2014 for discussion of such aspects). Nonetheless, children's wellbeing has in-built potential for maximisation while children's rights risk emphasising minimum standards.

Children's rights can be critiqued further, as not including all aspects that matter to children. As discussed above, the UNCRC itself leaves out certain children's rights issues, such as child marriage, and the UNCRC's rights to political participation, and involvement more generally, are weak (see Tisdall, Reference Tisdall, Vandenhole, Desmet, Reynaert and Lembrechts2015). Children's rights do not include important matters like love, attachment and friendship (human rights law does not legislate for the right to be loved, for example). Children's wellbeing conceptually can include these aspects and numerous studies seek to assess them (Statham and Chase, Reference Statham and Chase2010). Children's wellbeing may thus be more able than children's rights to address aspects of relationships (see also Taylor, Reference Taylor2011). Camfield and colleagues (Reference Camfield, Streuli and Woodhead2009) suggest that conceptualisations of children's wellbeing may be able to recognise groups, which is more of a struggle within an individualistic tradition of human rights.Footnote ⁶ Children's wellbeing may be better able to deal with conflicts, as children's wellbeing does not establish absolute and maximum standards and thus there are possibilities for negotiation. Children's wellbeing may therefore be wider in its coverage and better able to recognise and deal with relationships than children's rights. Children's rights, in contrast, are inalienable and thus should not be breached, potentially leading to confrontation rather than negotiation. Negotiation, however, may result in standards that are highly unfavourable to children; the flexibility with which children's wellbeing is defined, measured and integrated into policy and practice is both a potential strength and weakness.

While much is being done to expand the domains covered by children's wellbeing (see Bradshaw et al., Reference Bradshaw, Hoelscher and Richardson2007), it arguably still lacks due attention to the range of issues covered by the UNCRC (see Lundy, Reference Lundy, Ben-Arieh, Casas, Frønes and Korbin2014) and particularly lacks sufficient, comparable data and measures (Hood Reference Hood2007; Statham and Chase, Reference Statham and Chase2010). However, the range of issues can and has been expanded.Footnote ⁷ It would be possible for children's own priorities for wellbeing to be measured, if the same investment were given to such matters as has been given to various child development measures. Strong advocates within the children's wellbeing field value children as research participants, rather than solely relying on parents and service providers, and include children in determining what should be measured and how (e.g., Ben-Arieh, Reference Ben-Arieh2005; Ben-Arieh et al., Reference Ben-Arieh, Casas, Frønes, Korbin, Ben-Arieh, Casas, Frønes and Korbin2014; Hood, Reference Hood2007). Thus, UNCRC's key principle in Article 12, on children's participation, can become part of defining, measuring and researching children's wellbeing. The UNCRC itself can be criticised for insufficiently involving children, in the development of the UNCRC text itself (Van Bueren, Reference Van Bueren2011).

Children's wellbeing in its maximisation of wellbeing, risks taking the utilitarian approach, as developed by Bentham (Reference Bentham1776): ‘the greatest happiness of the greatest number’. As long as wellbeing is maximised overall, it does not matter if certain children have very poor outcomes. Such an approach emphasises outcomes – whether about children's futures (e.g. school enrolment) or their quality of life now (e.g., appreciation of or learning in school) – but may ignore the importance of the processes to obtain them. Thus children can be treated as ‘means not ends’ and their rights can be abrogated for the greater good. Melton makes a related point, ‘The calculus changes dramatically when moral decision making changes from cost-benefit analysis to the question of justification for a violation of respect of persons’ (2014: 2565; see also Lundy, Reference Lundy, Ben-Arieh, Casas, Frønes and Korbin2014). This calculus has not only moral implications but also political ones. Children's wellbeing does not have the ‘moral coinage’ (Freeman, Reference Freeman1983: 2) nor the ‘political trump’ of rights (see Edwards and Imrie, Reference Edwards and Imrie2008 for a similar conclusion for disabled people).

Further, international human rights law in general, and the UNCRC in particular, ensure state accountability (Lundy, Reference Lundy, Ben-Arieh, Casas, Frønes and Korbin2014; Morrow and Mayall, Reference Morrow and Mayall2009). It is States Parties that ratify the UNCRC and they become responsible for ensuring implementation. Within the State's resources, and with international co-operation (Article 4), the State is obligated to meet children's rights. Thus, measuring the realisation of children's rights requires measuring States Parties’ activities as well as other duty bearers’, to support the achievement and recognition of children's rights. It would be possible to incorporate such considerations into children's wellbeing, but it is not foundational to the concept; this contrasts with children's rights, where the accountability of duty bearers is conceptually central.

If children's wellbeing and children's rights are not synonymous, but have some important differences, than what is and should be the relationship between them? Authors articulate various relationships in the children's wellbeing literature. Bradshaw and colleagues, for example, developed the UNICEF Report Cards; Bradshaw and colleagues (Reference Bradshaw, Hoelscher and Richardson2007: 134) state that the UNCRC ‘offers a normative framework for the understanding of children's wellbeing’ (see also Bradshaw et al., Reference Bradshaw, Hoelscher and Richardson2006: 6). Bradshaw thus suggests UNCRC is a value system, which helps understanding of the predominant concept of children's wellbeing. But if the UNCRC was a strong normative framework, there would be a requirement for children's wellbeing to account back to children's rights. However, this is not covered in Bradshaw's publications in Reference Bradshaw, Hoelscher and Richardson2006, Reference Bradshaw, Hoelscher and Richardson2007 nor Reference Bradshaw, Ben-Arieh, Casas, Frønes and Korbin2014. Further, children's rights are only one perspective on wellbeing and only one component, in the 2007 publication. Bradshaw and colleagues write:

The wording suggests that there is more than a children's rights perspective to wellbeing (so children's rights are one amongst many and not necessarily the determining one?). Wellbeing, according to the quotation, contains not only one component (the realisation of children's rights) but a second one (the fulfilment of opportunity). It is not clear how the UNCRC can function as a normative framework for children's wellbeing, while realising children's rights (and not the UNCRC) is but one component of children's wellbeing. This may be explained by Bradshaw's reformulation in 2014:

Thus the UNCRC is only the normative framework for government help, not wellbeing more generally.

Camfield and colleagues (Reference Camfield, Streuli and Woodhead2009: 65) suggest a related, but different, relationship to Bradshaw, starting their article with the sentence: ‘Monitoring, protecting and promoting well-being is central to realisation of children's rights, as set out in the UN Convention on the Rights of the Child.’ They go onto to write that understanding wellbeing assists in interpreting concepts like ‘best interests’ (Article 3) and relate wellbeing to other UNCRC articles. The suggestion, then, is that children's wellbeing contributes to defining and realising children's rights.

Doek, who was a member of the UN Committee on the Rights of the Child and a leading academic on children's rights, wrote a chapter titled ‘Child well-being: children's rights perspective’ (Reference Doek, Ben-Arieh, Casas, Frønes and Korbin2014). The chapter does not seek to resolve the conceptual relationships between children's rights and children's wellbeing. Instead, it provides a very well-informed history and description of the UNCRC, and how elements of the UNCRC map onto children's wellbeing – or challenge some aspects of how wellbeing is operationalised. At least three different relationships between children's rights and wellbeing are covered within the chapter. First, Doek writes that the UNCRC incorporates children's wellbeing: ‘The CRC made well-being a right of the child and moved it from charity to entitlement’ (p. 188). Indeed, wellbeing is mentioned in the UNCRC's preamble and then in five different articles. Second, Doek quotes Bradshaw and colleagues’ wording above, so that the realisation of children's rights is one of two components to define children's wellbeing (p. 205). Third, Doek asserts that the UNCRC ‘covers all aspects of the life of a child and is thus an important tool for the promotion of the well-being of children’ (p. 213) (see Zermatten, Reference Zermatten2010, for a similar assertion). These relationships seem to move from the UNCRC being the dominant framework, with children's wellbeing as part of it, to children's rights being half the definition of children's wellbeing, and then to children's rights being a tool to promote children's wellbeing – and thus wellbeing being the dominant objective.

The above is a very detailed look at articles and chapters, most of which sought to address the conceptual relationship between children's rights and children's wellbeing only briefly and indirectly. To be unduly critical is thus not the purpose, but more to point out that the relationship is under-considered and at times confusing and inconsistent.