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Rights, values and ethical issues in child health

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Abstract

The notion of ‘children’s rights’ was once described as ‘a slogan in search of a definition’ [1] and it is relatively recently that children’s rights have been accorded a measure of explicit recognition both nationally and internationally [2]. In the UK, children’s rights appeared to have come of age by virtue of the landmark House of Lords decision, the Gillick case [3] and the implementation of the Children Act 1989 which came into force on 14 October 1991. On the international front, the United Nations Convention on the Rights of the Child was adopted by the UN General Assembly on 20 November 1989, and was ratified by Britain on 16 December 1991 [4]. This convention has so far been ratified by more than one hundred countries. Nevertheless, neither the content nor the method of interpretation of children’s rights may be taken as settled, either at the domestic or international level since the mere itemisation of rights does not guarantee their availability, not least because all laws are open to interpretation. Moreover, the mere enactment of rights, even though contained in an international treaty, will not, per se, improve the living conditions of children in need either in Britain or other parts of the world.

Keywords

Child Abuse Corporal Punishment Parental Responsibility Health Visitor General Medical Council 
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Notes AND References

  1. 1.
    Rodham, H. (1973) Children under the law. Harvard Educational Review, 43, 487–514.Google Scholar
  2. 2.
    The American Supreme Court case of Re Gault, 387, US 1 (1967) ruled in the mid-1960s that children qualified as persons under the US Constitution and were therefore capable of possessing fundamental rights. Various writers on both sides of the Atlantic have, of course, been writing about the rights of children for decades; see e.g. Foster and Freed (1972) A bill of rights for children. Family Law Quarterly, 6, 343; Farson, R. (1978) Birthrights. Penguin, Harmondsworth; and Mnookin, R. (1981) Thinking about children ’s rights -beyond kiddie libbers and child savers. Stanford Lawyer, 24; see also Freeman, M. D. A. (1983) The Rights and Wrongs of Children. Frances Pinter, London; and MacCormick, N. (1982) Children ’s Rights: a Test-case for Theories of Rights in Legal Right and Social Democracy. Oxford University Press.Google Scholar
  3. 3.
    Gillick v. West Norfolk and Wisbech Area Health Authority (1986) FLR 224; [1986] AC 112; [1985] FLR 224; ironically this case was initiated in order to clarify the scope of parental rights.Google Scholar
  4. 4.
    This Convention came into force in the UK on 15 January 1992.Google Scholar
  5. 5.
    See the classic exposition by Hohfeld, W. N. (1964) Fundamental Legal Conceptions. Yale University Press.Google Scholar
  6. 6.
    See, e.g. Haworth, L. (1986) Autonomy. Yale University Press;Google Scholar
  7. 6.
    Raz, J. (1986) The Morality of Freedom. Clarendon Press, Oxford; Murphy, J. (1992) W(h)ither adolescent autonomy? Journal of Social Welfare and Family Law, 529.Google Scholar
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    Academic writers have also given the subject a considerable amount of thought; see e.g. Eekelaar, J. (1986) The emergence of children ’s rights. Oxford Journal of Legal Studies, 6, 61;Google Scholar
  9. 7a.
    Freeman, M. D. A. (1983) The Rights and Wrongs of Children. Frances Pinter;Google Scholar
  10. 7b.
    Freeman, M. D. A. (1987) Taking children ’s rights seriously. Children and Society, 4, 299;Google Scholar
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    Alston, P., Parker, S. and Seymour, J. (1991) Children ’s Rights and the Law. Clarendon Press, Oxford.Google Scholar
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    In law, a ‘child ’ is defined in different ways for different purposes: thus, ‘child ’ has been used to denote a person of either sex who is under 18 years of age (see s. 105: Children Act 1989; s. 72: Adoption Act 1976); but for purposes of care proceedings, a person would be considered a ‘child ’ and could be placed in the care of a local authority only if either under 17; or under 16 years old, if married (as more common in marriages contracted abroad). Special rules also apply to entitle a person who is already 18 years old to apply for and receive financial provision from a court in certain exceptional circumstances, e.g. if that person is or will be receiving educational training but periodical financial payments will not normally be extended beyond the child ’s eighteenth birthday (see paras 2, 3 and 6 and s. 105: Children Act 1989). A young person aged 16 years (although a ‘child ’ for other purposes) can consent to sexual intercourse and get married, with parental consent or court permission; and consent to medical treatment but see also Gillick case discussion in text for ‘mature ’ children aged under 16 years.Google Scholar
  14. 9.
    For example, the right of the child to have access to both a custodial and non-custodial parent after its parents have been divorced: see M v M [1973] 2 All ER 71; under the Children Act 1989, access orders have been replaced by contact orders and custody orders have been replaced by residence orders and the new concept of Parental Responsibility (see text).Google Scholar
  15. 10.
    For example, under s. 43(8) of the Children Act which states that ‘if the child is of sufficient understanding to make an informed decision he may refuse to submit to a medical or psychiatric examination or other assessment ’. However, recent cases now suggest that this right to refuse appears to apply only at the point of assessment and that a court of law can always override a child ’s refusal to consent if it deems it is necessary to do so in order to save the child ’s life or if it deems this was in the child ’s best interests: see the Court of Appeal decisions in Re R (A Minor) (Wardship: Medical Treatment) [1991] 2 WLR 592, and Re W (A Minor) (Medical Treatment) [1994] 4 All ER 627, discussed in the text of this chapter.Google Scholar
  16. 11.
    For a selection of academic commentary see Hoggett, B. M. (1986) Parents, children and medical treatment: the legal issues, in Rights and Wrongs in Medicine, (ed. P. Byrne) King ’s Fund, London; de Cruz, S.P. (1987) Parents, doctors and children: the Gillick case and beyond. Journal of Social Welfare Law, 93; Eekelaar, J. (1986) The eclipse of parental rights. Law Quarterly Review, 102, 44;Google Scholar
  17. 11a.
    Bainham, A. (1986) The balance of power in family decisions. Cambridge Law Journal, 45, 262;CrossRefGoogle Scholar
  18. 11b.
    Cretney, S.M. (1989) Gillick and the concept of legal capacity. Law Quarterly Review, 105, 356.Google Scholar
  19. 12.
    See the Gillick Case (1986) FLR at p. 251.Google Scholar
  20. 13.
    See Re R (A Minor) (Wardship: Medical Treatment) [1991] 4 All ER 177; for a sample of the academic commentary on the legal aspects of this case, see Bainham, A. (1992) The judge and the competent minor. Law Quarterly Review, 108, 194;Google Scholar
  21. 13.
    Thornton R. (1992) Multiple keyholders — wardship and consent to medical treatment. Cambridge Law Journal, 51, 34; Urwin, J.(1992) Re R: the resurrection of parental powers? Professional Negligence, 69; Murphy, J. (1992) W(h)ither adolescent autonomy? Journal of Social Welfare and Family Law, 529.CrossRefGoogle Scholar
  22. 14.
    One certainly has to question whether even every adult has a ‘full understanding ’ of the consequences of treatment. A similar query must be raised over whether an adolescent will equally understand the full implications of contraceptive treatment in relation to her own body since it is well-known that adult women who have been using the pill for many years have difficulty ‘fully ’ understanding its implications in relation to their own biological ‘clock ’.Google Scholar
  23. 15.
    See Re W (A Minor) (Medical Treatment) [1992] 4 All ER 627, the case was also known as Re J (see Re J (a minor) (1992) The Times, 14 May); discussed: de Cruz, P. (1992) Minors, medical treatment and the courts. Practitioners Child Law Bulletin, 9, 71.Google Scholar
  24. 16.
    See Re K, W and H [1993] 1 FLR 854; South Glamorgan CCvW & B [1994] 1 FLR 574; on the latter case see Lyon, C. (1994) What ’s happened to the child ’s ‘right ’ to refuse? — South Glamorgan CCvW & B. JCL, 6, 84.Google Scholar
  25. 17.
    That is, as in South Glamorgan CC v W & B (1994) (see previous footnote).Google Scholar
  26. 18.
    Or even the child ’s ‘right ’ to die? Or see Houghton-James, H. (1992) The child ’s right to die. Family Law, 22, 550 which discusses the Re W case [1992] 4 All ER 627 involving the anorexic child who did not wish to live and was on a starvation diet; see text of this chapter for discussion.Google Scholar
  27. 19.
    That is, under sections 38(6), 43(8), 44(7) and Schedule 3, para. 4(4): Children Act 1989.Google Scholar
  28. 20.
    The Times, 11 May 1992.Google Scholar
  29. 21.
    See s. 1(3) (a): Children Act 1989.Google Scholar
  30. 22.
    For some of the early literature on parental rights see Eekelaar, J. (1973) What are parental rights? Law Quarterly Review, 89, 210;Google Scholar
  31. 22a.
    Dickens, B. M. (1989) The modem function and limits of parental rights. Law Quarterly Review, 105, 462.Google Scholar
  32. 23.
    See s. 1 (5) which makes it clear that the court must be convinced that it must be better for the child to have an order made than not at all. Andrew Bainham regards sections such as this as representing a form of ‘privatisation ’ of the family so that state intervention will be minimal unless justified by the ‘significant harm ’ test: see Bainham, A. (1990) The privatisation of the public interest in children. Modern Law Review, 53, 206. Perhaps it is more a case of balancing various competing interests and the State is still struggling to strike the right balance.CrossRefGoogle Scholar
  33. 24.
    As required under the Children and Young Persons Act 1933, s. 1.Google Scholar
  34. 25.
    As required under the Education Act 1944, s. 36.Google Scholar
  35. 26.
    Such as gambling, begging or being tattooed.Google Scholar
  36. 27.
    This is discussed in the section on consent.Google Scholar
  37. 28.
    That is, from a reading of its wording and that of section 241 of the Education Act 1993 (see text, below).Google Scholar
  38. 29.
    See Circular no. 5/94: Education Act 1993: Sex Education in Schools. Google Scholar
  39. 30.
    That is, prohibiting the teaching, as part of the National Curriculum in Science, of any material on AIDS, HIV, and other sexually transmitted diseases, or any aspect, other than biological aspects of human sexual behaviour: see para. 16: circular 5/94: Education Act 1993.Google Scholar
  40. 31.
    see Circular no. 5/94: Education Act 1993.Google Scholar
  41. 32.
    Parental Responsibility Agreement is the title of the official standard form on which such an agreement may be registered; the father ’s PR may then be formalised by simply filling in the form with the names of the parties, signing it and registering it for a fee; the completed form will then be lodged in the central Registry. PR acquired in this way, however, is revocable.Google Scholar
  42. 33.
    The so-called doctrine of ‘informed consent ’ is not a full-blown legal concept in English law as it is in the United States of America whence it has been imported: see Scholendoff v Society of New York Hospital 211 NY 125 (1914); or in Canada: see Johnston v Wellesly Hospital (1970) 17 DLR (3d) 139 at pp. 144–5; for the English law approach, see Chatterton v Gerson [1981] 1 All ER 257 (QBD) and Sidaway v Bethlem Royal Hospital Governors [1984] 1 ALL ER 101 8 (Court of Appeal).Google Scholar
  43. 34.
    See Chatterton v Gerson [1981] 1 All ER 257 (QBD); and Thorpe, J. in Re C (1993) NLJR 1642.Google Scholar
  44. 35.
    Of course, if the patient suffers harm as a result of negligence in diagnosis or treatment, liability might also be incurred. If the harm occurs because one of the risks involved transpires, then the patient may yet have a course of action if he proves that the doctor was negligent in giving the advice about the treatment and that, had the patient been given all the material facts, he or she might not have given consent at all: see for an excellent discussion of these points and the Gillick case, Hoggett, B. M. (1986) ‘Parents, children and medical treatment: the legal issues, in Rights and Wrongs in Medicine (ed. P. Byrne) King ’s Fund, London.Google Scholar
  45. 36.
    Re W (A Minor) (Consent to Medical Treatment) [1992] 4 All ER 627 at p. 635; see also Nicholls, M. (1994) Keyholders and flak jackets. Family Law, 24, 81.Google Scholar
  46. 37.
    Current NHS guidelines on consent recommend that a detailed note should be kept of the factors taken into account in assessing the child ’s capacity to consent. If a child discusses the situation without a parent being present, then efforts should be made to persuade the child that his or her parents should be informed except when this is regarded as not in the child ’s best interests.Google Scholar
  47. 38.
    See The Gillick Case [1986] FLR at p. 254.Google Scholar
  48. 39.
    See Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] AC 871.Google Scholar
  49. 40.
    As laid down in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.Google Scholar
  50. 41.
    This is the effect of Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] AC 871.Google Scholar
  51. 42.
    According to current NHS guidelines, if consent of urgent / life-saving treatment is refused, the court ’s permission should be obtained if time permits. Otherwise, hospital authorities should rely on the clinical judgement of the relevant health professional after full discussion with the parents. Written supporting evidence should also be obtained from a colleague, which should make an explicit statement that the child ’s life would be in danger if treatment is withheld. There would also be a discussion with the parents about the need to treat the child, and this should be conducted in the presence of a witness who should countersign the record of the discussion in the clinical notes.Google Scholar
  52. 43.
    There were pre-Children Act cases where the minors wished to have abortions which were opposed by their parents. In the first case, the 15-year-old girl ’s wishes were given prominence, in view of the fact that this was her second pregnancy and she was living in a mother and child unit; see Re P (a minor) (1982) LGR 301. In another case, the girl, who was 12, also wished to have an abortion, which was opposed by her mother but supported by the 16-year-old father of the baby and the girl ’s grandparents who had brought the girl up. The court again chose not to follow the parent in opposition but justified their decision by saying it was in the child ’s best interests; Re B (Wardship) (abortion) [1991] 2 FLR 426; In Re W [1992] 4 All ER 627 itself, Lord Donaldson made it clear that abortions would not normally be carried out in reliance on the consent of parents in the face of the refusal of 16 or 17-year-olds. He said (at p. 635): ‘Whilst this may be possible as a matter of law, I do not see any likelihood, taking account of medical ethics, unless the abortion was truly in the best interest of the child. ’ He then proceeded to say ‘This is not to say that it could not happen ’ citing Re D (a minor) (wardship; sterilisation) [1976] 1 All ER 326 where the child concerned ‘had neither the intelligence nor the understanding either to consent or refuse ’; where a Sotos syndrome child was involved. In fact, the sterilisation operation was not carried out in that case because there was a strong likelihood the girl would understand the implications of the operation when she reached 18. Again, the girl ’s parent wanted the sterilisation to be carried out, in the belief that it would be in her best interests.Google Scholar
  53. 44.
    At [1992] 4 All ER at p. 336.Google Scholar
  54. 45.
    See Re B (A Minor) (1981) 1 WLR 1421 (the Down ’s syndrome baby).Google Scholar
  55. 46.
    As in Re C (A Minor) [1989] 2 All ER 782.Google Scholar
  56. 17.
    See Re J (A Minor) (Wardship: Medical Treatment) [1990] 3 All ER 930, dealing with a severely multi-handicapped newborn baby, where as far as resuscitation policy was concerned, the Court of Appeal declared that it is up to the court to decide on the quality of life the child would have if resuscitated, and to decide in all the circumstances of the case whether that child ’s life would be so afflicted as to be intolerable. Thus, an inquiry into the child ’s ‘quality of life ’ would be the means of determining the ‘best interest ’ of the child which is the general criterion. If the child ’s disabilities were so extreme that his life would be ‘demonstrably awful ’ (Re B (note 44)) or intolerable (Re J) non-resuscitation would probably be legally justifiable but there is still no clarification of how extreme the child ’s condition must be or which missing ‘qualities of life ’ would be relevant to the decision. Note further Re T (A Minor) (Wardship: Medical Treatment) (1996) The Times, October 28 where for a baby with a life- threatening liver defect, Butler Sloss, LJ said that ‘to prolong life was not the sole objective of the court ’ as this might not be in the child ’s best interest. There is clearly no absolute ‘sanctity of life ’ policy currently endorsed by the English courts in these cases.Google Scholar
  57. 48.
    For example, where the child is an older child who has established bonds with a sibling or parent over several years and who may therefore be emotionally traumatised by the complete severance of contact with these relatives; see Re C (a minor) (adoption order; conditions) [1988] 1 All ER 705 (H/L) where the House of Lords attached an access condition to an adoption order in exceptional circumstances and only because the adoptive parents agreed to this.Google Scholar
  58. 49.
    The current law is that people adopted in England or Wales before 12 November 1975 are required to see a counsellor before they can be given access to the original record of their birth. All those adopted in the UK after 11 November 1975 and who are at least 18 years of age need not see a counsellor before being given such information although a counselling service is also available to such persons. Those living outside the UK, who were adopted in England and Wales before 12 November 1975 now have the right to see their birth records without having to travel to the UK for a counselling interview.Google Scholar
  59. 50.
    On the analogy of the principle in W v Edgell [1990] 1 All ER 835, where the Court of Appeal held that a real risk to public safety outweighed the need to preserve confidentiality and a psychiatrist was therefore justified in communicating his fears to the relevant authorities to prevent the release of a potentially dangerous prisoner.Google Scholar
  60. 51.
    This is a new order (s. 43) which is intended to deal with situations where there is reasonable cause to suspect that a child is suffering significant harm but where the risk is not immediate or imminent; the applicant (who can only be the local authority or the NSPCC) must believe that an assessment (medical, psychiatric, or other) is required and the parents have not been willing to cooperate. The order lasts for a maximum of 7 days from the date on which it comes into effect. The child would only be removed from the home in exceptional circumstances and the child need only be produced at a medical centre for assessment within the 7 day period. The court may only make the order if it is satisfied that there is ‘reasonable cause to suspect ’ (my emphasis) that the conditions have been fulfilled. Directions for the medical or psychiatric examination of the child may be included when the Order is made.Google Scholar
  61. 52.
    This is in sections 44 and 45 and will only be made in extremely urgent cases where the child ’s safety is in imminent danger. It will only be made if a court is satisfied that there is reasonable cause to believe that the child is likely to suffer ignificant harm if it is not removed to suitable accommodation or remains where he is (e.g. if the child is already in a hospital). The usual case where this Order may be applied for is where there has been a denial of access to the child without a reasonable explanation. The order lasts for a maximum of 8 days but may be extended (if the applicant was the only party present at the initial application hearing) for another 7 days. Thus, if the parents/carers with parental responsibility were not present (having received a day ’s notice) when the order was made. The Order gives the applicant parental responsibility for the child but only to the extent necessary to safeguard and promote the welfare of the child. Directions for a medical or psychiatric examination may be given when the Order is made.Google Scholar
  62. 53.
    These began to fall into disrepute when it appeared that magistrates were granting these to local authorities somewhat indiscriminately and they were frequently perceived as a breach of civil liberties since there was no right of appeal against them until a court hearing could be arranged or until the period of their duration (which could be as long as 28 days) expired.Google Scholar
  63. 54.
    See the key section s. 31(2) of the Children Act 1989.Google Scholar
  64. 55.
    See s. 31(9): Children Act 1989.Google Scholar
  65. 56.
    See s. 31(10).Google Scholar
  66. 57.
    See now the important House of Lords ’ case of Re M [1994] 3 All ER 298.Google Scholar
  67. 58.
    See Newham London BC v AG [1993] 1 FLR 281.Google Scholar
  68. 59.
    For a fuller account of these evidential problems see Lyon, C. and de Cruz, P. (1993) Child Abuse 2nd edn Jordan. Bristol.Google Scholar
  69. 60.
    As Waite, J. put it in Re W (Minors) (Child Abuse: Evidence) [1987] 1 FLR 297: ‘Cases of alleged child abuse within the family... [pose] exceptional difficulty, because they... contrast two principles... fundamental to our society. One is the basic requirement of justice that nobody should have to face a finding by any court of serious parental misconduct without the opportunity of having the allegations... clearly specified and cogently proved. The other is the public interest in the detection and prevention of parental child abuse which is liable, if persisted in, to do serious damage to the emotional development of the victim ’.Google Scholar
  70. 61.
    This matter is currently covered by various guidance documents issued by the Department of Health to doctors, nurses, health visitors and midwives and is discussed in the section on roles and responsibilities of doctors and managers involved in health care.Google Scholar
  71. 62.
    See, e.g. The Guardian 3 June 1994.Google Scholar
  72. 63.
    This was in response to the various child abuse inquiries such as the Jasmine Beckford Report (A Child in Trust (1985) DHSS) and the Cleveland Report: see Report of the Inquiry into Child Abuse in Cleveland 1987 (1988) HMSO, London.Google Scholar
  73. 64.
    Department of Health, Department of Education and Science, and the Welsh Office (1991) Working Together under the Children Act 1989: A Guide to the Arrangements for Interagency Cooperation for the Protection of Children from Abuse. HMSO, London.Google Scholar
  74. 65.
    Department of Health (1992) Child Protection: Guidance for Senior Nurses, Health Visitors and Midwives. HMSO, London.Google Scholar
  75. 66.
    Department of Health (1992) Child Protection. HMSO, London.Google Scholar
  76. 67.
    Department of Health (1992) The Children Act 1989. An Introductory Guide for the NHS. Health Publications Unit, Heywood, Lancashire.Google Scholar
  77. 68.
    Department of Health (1992) The Children Act 1989. What every nurse, health visitor and midwife needs to know. Health Publications Unit, Heywood, Lancashire.Google Scholar
  78. 69.
    Child health services also have a role to play in assessing a child ’s needs in relation to a proposed day care, residential or foster placement.Google Scholar
  79. 70.
    This is also stated in s. 1 (3) (a): Children Act 1989.Google Scholar

Further Reading General Books on the Children Act and Child Law

  1. Bainham, A. (1990) Children — The New Law: Children Act 1989. Jordan, Bristol.Google Scholar
  2. Bainham, A. (1993) Children — The Modern Law, Family Law / Jordan, Bristol.Google Scholar

Government Publications

  1. Department of Health (1989) An Introduction to the Children Act 1989. HMSO, London.Google Scholar
  2. Department of Health (1990) The Care of Children: Principles and Practice in Regulations and Guidance. HMSO, London. Department of Health, Department of Education and Science and the Welsh Office (1991) Working Together under the Children Act 1989: A Guide to the Arrangements for Inter-agency Co-operation for the Protection of Children from Abuse. HMSO, London.Google Scholar
  3. Department of Health (1995) The Challenge of Partnership in Child Protection: Practice Guide HMSO, London.Google Scholar
  4. Department of Health (1992) The Children Act 1989. An Introductory Guide for the NHS. Health Publications Unit, Heywood, Lancashire.Google Scholar
  5. Department of Health (1992) The Children Act 1989. What every nurse, health visitor and midwife needs to know. Health Publications Unit, Heywood, Lancashire.Google Scholar
  6. Department of Health (1987) Protecting Children: A Guide for Social Workers Undertaking a Comprehensive Assessment. HMSO, London.Google Scholar

Volumes of Children act 1989 Guidance (All Published by HMSO)

  1. vol 1: Court OrdersGoogle Scholar
  2. vol 2: Family Support, Day Care and Educational Provision for Young ChildrenGoogle Scholar
  3. vol 3. Family PlacementsGoogle Scholar
  4. vol 4. Residential CareGoogle Scholar
  5. vol 5. Independent SchoolsGoogle Scholar
  6. vol 6. Children with DisabilitiesGoogle Scholar
  7. vol 7. Guardians ad Litem and other Court Related IssuesGoogle Scholar
  8. vol 8. Private Fostering and MiscellaneousGoogle Scholar
  9. vol 9. Adoption IssuesGoogle Scholar

Books on Health Issues and Child Law

  1. Hendrick, J. (1993) Child Care Law for Health Professionals. Routledge Medical Press, Oxford.Google Scholar
  2. Mitchell, B. and Prince, A. The Children Act and Medical Practice. Family Law /Jordan, Bristol.Google Scholar

United Nations Convention on the Rights of the Child

  1. Newell, P. (1991) The UN Convention and Children ’s Rights in the UK. National Children ’s Bureau, London. (This contains the UN Convention on the Rights of the Child as well as the European Convention on Human Rights in appendices.)Google Scholar
  2. Alston, P., Parker, S. and Seymour, J. (eds) (1991) Children, Rights and the Law. Clarendon, Oxford. (This contains a copy of the UN Convention on the Rights of the Child in appendix) Bulletin of Human Rights 9/13 Centre for Human Rights: Geneva: New York. 1992.Google Scholar

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