RIGHT TO CHOICE || CHILD RIGHTS PROJECT

NATIONAL LAW UNIVERSITY ODISHA

RIGHT TO CHOICE IN PERSPECTIVE OF CHILDREN

A RESEARCH WORK: IX SEMESTER

ON

CHILD RIGHTS PROJECT

MADE UNDER THE GUIDANCE OF:

MS. PALLABI SENGUPTA

(RESEARCH ASSOCIATE – CUM – TEACHING ASSISTANT)

SUBMITTED BY:

MANAS PRATAP SINGH (18BA054)

SHASHVAT PRAKHASH (18BA097)
SHRESTHA ROY (18BA100)
TOSHIKA SONI (18BA110)
TROEETA BHUNIYA (18BA111)
SONIA MANGTANI (18BBAO55)

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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ 2

HISTORY AND INTRODUCTION .................................................................................................. 3
EMPIRICAL RESEARCH: SURVERY FINDINGS AND ANALYSIS .................................................. 5
ABOUT THE SURVEY ........................................................................................................ 5
OBJECTIVE ......................................................................................................................... 5
TARGET AREA & GROUP ................................................................................................. 5
LIMITATIONS ..................................................................................................................... 6
QUESTIONNAIRE............................................................................................................... 6
ANALYSIS OF THE SURVEY ............................................................................................ 7
Introductory Observations: ................................................................................................ 7
Right to Choice: General Lens Observations: ................................................................... 8
Right to Choice: Individual Observations: ...................................................................... 13

COMPARATIVE RESEARCH: RIGHT TO CHOICE ACROSS DIFFERENT PARAMETERS: IN

INDIA, UK AND US ..................................................................................................................... 18
Child’s say in Emancipation: ............................................................................................. 18
Child’s Preference in Custody after Divorce: .................................................................... 19
Child’s Right to Choice to Play and Recreate: .................................................................. 22
Right of a Child to Choice for Medical Emancipation: .................................................... 23
Child’s right to Choice for Euthanasia:............................................................................. 24
Preference of child in choosing education......................................................................... 25
Preference of child in choosing occupation....................................................................... 27

REALISING THE GOAL OF THE EFFECTIVE CHOICE: THE WAY FORWARD............................ 30

ANNEXURE: E-MAIL ATTACHMENT

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HISTORY AND INTRODUCTION

Human rights begin with children rights. There is no trust more sacred than the one the world
holds with children. There is no duty more important than ensuring that their rights are
respected, that their welfare is protected, that their lives are free from fear and want and that
they grow up in peace. It is a call to all people to respect human rights of children and to
reaffirm their commitment to children.

An important turning point in the global campaign in support of children's rights was the
1989 adoption of the United Nations Convention on the Rights of the Child (CRC). This
extensive document offers a collection of international legal requirements or rules for the
safety and welfare of children. Children have the right to receive a variety of services, such as
a name and nationality, as well as health care and education. Children have the right to
participate in decisions that may influence their life as well as the right to be protected from
certain actions such as torture, exploitation, abuse, arbitrary incarceration, and unjustified
removal from parental care. The first international document to include all categories of
human rights—civil, cultural, economic, political, and social rights—is the Convention on the
Rights of the Child.1 Due to the fact that children often require specialised care and protection
that adults do not, world leaders concluded in 1989 that children required their own
convention.2 The world's leaders also wished to ensure that children's rights are
acknowledged. The national governments that ratify it pledge to uphold and defend children's
rights, and they also promise to answer to the world community for their actions in this
regard.

A fundamental aspect of the convention is embodied in the notion of respecting the child's
choice. It makes sense to listen to the child in order to determine what is truly in his or her
best interests.

1
Reynaert, Didier., Bourverne-de Bie, M., and Vande Velde , S. (2009) ; ‘A Review of Children Right’s Literature
Since the Adoption of the United Nations Convention on The Rights of the Child’, Childhood, 16(4), 518-534.
2
Resolution 1386 (XIV), Declaration of the Rights of the Child.
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The fundamental idea is stated in Article 12:1 of the UNCRC, which states that "States
Parties shall assure to the child who is capable of forming his or her own views the rights to
express those views freely in all matters affecting the child, the view of the child being given
due weight in accordance with the age and maturity of the child."3

They are predicated on the idea that children are also human beings with equal rights. The
support of children's rights to play emphasizes that childhood has significance in and of itself;
these years are not just a preparation for adult life. How can we treat children equally while
yet ensuring that they receive the essential protection? The application of the fundamental
principles of choice holds the key to the solution. Together, they create nothing less than a
paradigm shift in how we view kids. They offer the conference an ethical and ideological
component. Children have the right to freedom of speech and a voice in decisions that
influence their social, economic, religious, cultural, and political lives.

3
http://childrenandbusiness.org/the-principles/summary-of-the-convention-on-the-rights-of-the-child/
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EMPIRICAL RESEARCH: SURVERY FINDINGS AND ANALYSIS

ABOUT THE SURVEY

In order to analyze practical reality of ‘Right to Choice’ of children, a survey research was
undertaken by the group members. The questionnaire consisted of objective as well
subjective form of questions. The survey was conducted in an online mode through google
form. A total of 35 responses were received in lieu of the survey.

The nature of questions comprised of two categories, that is, first individual child’s right to
choice and second general children’s right to choice. The questions pertains to right to choice
of children, choice of body autonomy, medical treatment, education, extra curriculum
activities, religion and parent to live with post separation.

OBJECTIVE

The aim of the objective was to seek first-hand information of the notion of the ‘Right to
Choice’ as perceived by the children. The questionnaire was prepared with an aim to
comprehensively cover the perception of right to choice both as individual right of the child
providing the information by filling the form as well as to portray their perception of right to
choice as general right of children.

TARGET AREA & GROUP

As per the available resources and the nature of the survey, there is no specific target area
covered by the survey. The cities covered by the survey include Bhopal, Jaipur, Gwalior,
Delhi, Lucknow, Muradabad, Ghaziabad, Meerut and Ambala Cantt. The target group for the
survey concerns children from the age group of 7-17 years old. The age group has been fixed
considering the necessary level of understanding required to interpret the question and mental
ability required to objectively answer the questionnaire.

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LIMITATIONS

The limitation of the survey pertains to the lack of any target area. Due to this limitation, no
specific conclusion could be drawn with respect to understanding of right to choice perceived
by the children placed in a similar society. The limitation arises due to mode of the survey,
which was resultant of lack of means and resources.

QUESTIONNAIRE

1. Please share your full name with us.

2. How old are you as of today?
3. Are you comfortable sharing the religion you practice with us? If yes, please specify.
4. Please share your current place of Residence.
5. Do you receive a formal education at School? If yes, please specify the name of your
school. 6. In which standard do you read?
7. Do you study in a co-ed school or all girls/ all boys school?

If you’re comfortable so far, we’d like to move on to some general question regarding the
right of a child to make their own choices:

8. In your opinion, should a child be given a say in decision making process at home? – yes /
no
9. In your opinion, should children be allowed to exercise autonomy in making their life
decisions, and to what degree? – yes /no + short answer
10. In your opinion, who should be making decision concerning the medical treatment of a
child? Should children be given the freedom to choose. - yes /no
11. In your opinion, should a child be given the freedom to choose the curricular and co-
curricular activities that they participate in and pursue? – yes/ no
12. In case of a divorce or separation between parents, do you think the child should have the
right to choose in matter of their own custody with either parent? yes/no
13. In your opinion, in case of divorce or separation of parents, should children be given
freedom to choose their own surname? - yes/no
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14. In your opinion, should a child have the right to choose their religion, including the right
to change the religion they wish to practice? – yes /no
15. In your opinion, should a child be free to choose their sexual preference and orientation?
yes/no

Thank you for answering those question. We’d now like to move on to some personal
questions.

16. Is your opinion asked or listened to in decision matters of the home? – yes /no
17. Are you allowed to make the choice concerning your medical treatment With respect to
doctor or hospital, etc.? – yes/no
18. Are you allowed to choose the curricular and co-curricular activities and projects that you
participate in? – yes/ no
19. Did you get a choice in deciding your future goals/ career options/ occupations?
20. In your case, have you been given the freedom to choose your religion of choice and
practice the same? – yes/ no
21. In your case, have you been given the freedom to choose your sexual orientation and
sexual preferences? – yes/ no

ANALYSIS OF THE SURVEY

Introductory Observations:
The survey received 35 responses. The responses received are from children of age group of
11-17 years. The major number of responses have been received from the children of age 12
and 17 years. The respondents belong to religion of Hindu, Islam, Christian, and Jainism. A
few of the respondents have withheld disclosing their religion being uncomfortable. The
responses have been received from several cities of the country, however a large number of
respondents (17) belong to Bhopal.

Majority of the children receive formal education in a school, however, 2 respondents, one
aged 17 years and another 14 years old do not receive formal education. The respondents
belong to classes VI to XII, with majority studying in VII standard. The questionnaire also
covered the aspect of nature of the schooling, and majority of the respondents (21 out of 33)

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belong to Co-ed School, whereas 8 out of 33 respondents study in All boys school and
remaining 4 respondents study in All Girls School.

Right to Choice: General Lens Observations:

1. Children’s Choice in Decision Making Process at home –

A majority of the respondents (29 out of 35) believe that the children should have a say in the
decision making process at home. However, a minority opinion of 6 respondents believe that
the children should not be given say in the decision making process at home. The respondents
with a minority opinion belong to different religious beliefs and different place of residence,
however, all are males.

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2. Children’s Choice of Autonomy in Life Decisions –

A majority of the respondents (32 out of 35) believe that the children should be allowed to
exercise autonomy in making their life decisions. A minority of 3 respondents believe that the
children should not be given such autonomy in their life decisions.

3. Children’s Choice in Medical Treatment

A majority of the respondents believe that the Mother is best suited to take decision in
medical treatment of a child. The second best choice for decisions in matters of medical
treatment has been Father. The question provided for 4 options of Mother, Father, Child and
Others. The maximum respondents (16 out of 34) opined that Mother should take decisions in
the matter of medical treatment of a child, 9 respondents opined that Father should take
medical treatment decisions and a minority of only 3 respondents opined that Child should
take his own decisions pertaining to the medical treatment. 4 of the respondents suggest that
Both the parents should take the decision, 2 respondents suggest that either of the parents,
whoever is well-suited for the decision.

It is a clear observation, that children believe and trust their parents, especially their mother
to take decisions in the matter of medical treatment rather taking them by own.

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4. Right to Choice

A majority of the respondents (31 out of 35) believe that children should have right to choice,
rather freedom to choose. A minority of 4 respondents have voted against the concept of
freedom to choose for children. The respondents in minority belong to different place of
residence and have different environments of upbringing.

5. Children’s Choice in Participation and Pursuing of Curricular and Co-

curricular activities

A clear majority (34 out of 35) perceives that the children should have choice in decisions
pertaining to participation and pursuing of the curricular and co-curricular activities. Only 1

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respondent has opined negative to the motion that the children should not have choice in
deciding their participation and pursuing of curricular and co-curricular activities.

6. Children’s Choice of Parent in case of Divorce or Separation

A majority of respondents (30 out of 34) believes that a child should be given right to choose
the parent in the matters of custody that arise out of divorce or separation cases. The minority
of respondents (4 out of 34) believes that it should be decision of parents only and a child
should not have a right to choose in the matters of custody.

7. Children’s Choice of Surname in case of Divorce or Separation

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A majority of the respondents (22 out of 34) believe that the child should be given right to
choose his/her own surname in the cases of divorce or separation. However, another group of
respondents (12 out 34) believe that the decision of surname should be a matter of choice of
children, rather of the parents only. The dissenting minority belongs to varied environments
of upbringing and belong to different place of residence and schooling.

8. Children’s Right to choose Religion

A majority of the respondents (24 out of 35) opined that children should have choice in
choosing religion and even changing the same. A minority of 11 respondents believe that a
child should not be given choice in choosing his/her religion; or a choice in changing his/her
religion. The minority believes that the decision of religion of a child should be of a parent.

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Right to Choice: Individual Observations:

1. Respondents’ opinion in Decision Making at Home

In reality, majority (24 out of 35) of the respondents’ opinion are considered and listened at
their homes. However, 11 respondents’ opinion are not taken into account in decision making
at home. Based upon the response to the general notion of Children’s choice in decision
making process at home [Q. 1] , it can be observed that 8 respondents who believe that the
children should be given say in decision making at home unfortunately do not get the say in
decision making at their own homes. Further, 4 of the respondents who answered negatively
to [Q. 1], in reality also do not get say in decision making at their homes.

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2. Respondents’ Right to choose Medical Treatment

A majority of the respondents (19 out of 35) actually enjoy the right to exercise their choice
in the medical treatment. However, the another group of respondents (14 out of 35) does not
enjoy to exercise such right to choice in medical treatment. In observation from [Q. 3],
whereby majority of the respondents voted for Mother or Father or either parents to have
choice in decisions pertaining to medical treatment of a child; in reality do enjoy to exercise
the right to choice in their medical treatment. In [Q. 3] only 3 respondents believed that a
Child should have a right to choose his/her medical treatment; however, in reality, around 19
respondents actually get a choice in their medical treatment.

3. Respondents’ Right to choose and participate in Curricular and Co-curricular

activities

A majority of respondents (31 out of 35) enjoy the right to choose and participate in the
curricular and co-curricular activities of their own choice. However, a minority of
respondents (4 out of 35) do not get choice in selecting their curricular and co-curricular
activities. In reference to [Q. 5], whereby a majority of the respondents (34 out of 35) voted
positive for right to choose and participate in the curricular and co-curricular activities; in
reality not all the respondents actually get to choose and participate in activities and projects
of their own choice.

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4. Respondents’ Right to choose own Career / Future Plans

A majority of the respondents (29 out of 35) have received the choice to select and pursue
their preferred career and future plans. However 6 of the respondents did not get the choice to
select their own career or future plans. This question is in extension to the aforementioned
question, and thereby the observation is on the similar grounds.

5. Respondents’ Right to choose own Religion

In reality, a majority of the respondents (18 out of 34) have never received right to choose
their own religion. They have been following the religion as the same is being delivered to
them by their families / parents. However, another group of the respondents (16 out of 34)
have received the choice of choosing the religion to practice. In reference to [Q. 8], where the
majority of the respondents (24 out of 35) believed that a child should be given choice in
choosing and practicing his/ her own religion; in reality majority of the respondents (18 out
of 34) do not get the choice in practicing the religion.

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6. Respondents’ Right to choose Sexual Orientation or Sexual Preference

A majority of the respondents (19 out of 35) have been given a choice in choosing their
sexual orientation and sexual preference. However, a another group of respondents (16 out of
35) have not been given the choice of choosing their own sexual orientation or sexual
preference.

In conclusion, it can be deduced from the survey that the several aspects of right to choice as
construed by the children are not actually met in the reality. For Example, regarding the right
to choose in selecting curricular and co-curricular activities and projects: several respondents’
believe it to be the decision and a matter of right of the child, however, in the reality, the truth
differs. A similar dilemma arises in the case of choice of religion.

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It is understood that the right to choice of children is subject to challenge from parents’
interest and their protective duty towards the child. Despite that, there is a need to be more
inclusive of rights to choice of children as construed from their understanding.

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COMPARATIVE RESEARCH: RIGHT TO CHOICE ACROSS DIFFERENT

PARAMETERS: IN INDIA, UK AND US

Right to Choice of child: India United Kingdom United States

For Emancipation Yes Yes No

For Child Custody Yes Yes Yes

To Play and Recreate No No No

For Medical Emancipation Yes Yes No

For Euthanasia No No No

In Choosing Education No No No

In Choosing Occupation Yes Yes Yes

CHILD’S SAY IN EMANCIPATION:

In the majority of states in the United States, the age of majority is 18 years. Many states hold
parents accountable for their children's actions until they reach the age of 18, and many ban
minors from leaving home permanently without parental consent. A juvenile may seek
independence from parental supervision through a legal procedure called as emancipation.
There are laws in every state that allows some form of emancipation for children. Once a
young person reaches the age of 16 in the United Kingdom, he or she may leave home or
their parents may ask them to leave. However, parents remain accountable for their children
until they reach the age of 18, and they will certainly require assistance. In addition, there is

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no distinct legislation in India, not even the Majority Act of 1875. 4 The Majority Act of 1875
states that a kid is considered a minor until he or she reaches the age of 18.

CHILD’S PREFERENCE IN CUSTODY AFTER DIVORCE:

A decision made in "the best interests of the child" must take into account the wishes of the
parents, the wishes of the child, and the child's relationship with each of the parents, siblings,
and other individuals who may significantly impact the child's best interests, as well as the
child's comfort in his home, school, and community and the mental and physical health of the
involved individuals. In the United States, relevant Federal Statutes and Constitutional
provisions include: 28 U.S.C. 1738A - Full Faith and Credit Given to Child Custody
Determinations5; 42 U.S.C. 651 - Child Support Enforcement Act6; 25 U.S.C. 21 - Indian
Child Custody (See particularly Subchapter I)7; CRS Annotated Constitution; etc.
Nevertheless, State Legislation varies from state to state. In India, Section 17 of the
Guardians and Wards Act specifies the factors a court must consider while determining a
child's guardianship.8 These variables include the age, sex, and religion of the minor, the
character and capacity of the prospective guardian, and his proximity to the minor, the
desires, if any, of a deceased parent, and any current or past relationships between the
proposed guardian and the minor or his property. The rule also specifies that a court may
consider a minor's preference if he or she is mature enough to make an educated preference.
Moreover, in the United Kingdom and the European Union, the government has pledged that,
beginning at age 10, children and adolescents engaged in all family court proceedings would
have access to judges to express their opinions and concerns.

India: Like the society has progressed and diversified over the years, so has the public's and
the judiciary's thought. Rather than focusing on the "right of a parent," the focus has changed
to the "right of a child." It is even more crucial to consider the child's fundamental
requirements as well as wellbeing. In India, the person who is the most adept at taking
care of the child's social, medical, academic, and psychological requirements will indeed be
favoured and granted responsibility for the child.

4
Majority Act, 1875.
5
Section 1738A, 28 U.S. Code, 1926.
6
Section 651, 42 U.S. Code, 1926.
7
Section 21, 25 U.S. Code, 1926.
8
Section 17, the Guardians and Wards Act, 1890.
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In India, a parent's financial capability has no bearing on parental rights; rather what matters
is indeed the ability to maintain a healthy and secure environment for a youngster. If a parent
earns a living and the other is a stay-at-home parent, it is impossible for the latter to be denied
custody of child only because of that alone. If a kid is still of delicate age, the competent
authority then may opt to declare the mother the custodial parent and primary caretaker,
while giving the father alternative duties, rights and obligations, such as giving financial
assistance to the child. When a child however, reaches a characteristic age, he or she may
prefer to reside with his or her own custodial parent or even with whichever parent he or she
wishes to live with by their own choice.

Only upon reaching a certain age, which is 9 years under the Guardians and Wards Act of
1890 can a child in India pick which parent they would prefer to live with. (GAWA). Hence,
In India, when a kid reaches the age of nine, their request for custody is recognized.

United Kingdom: Unless certain Court Rulings are already in place, a minor in England and
Wales can select whom they want to live with from the age of 16. One can, nevertheless,
enable younger children to make this judgment on their own if the parents so desire, but their
selection will not be legally binding. Throughout Litigation process, the child's preferences
will be considered, albeit the importance they bear will be contingent on the circumstances.
In principle, if a kid exceeds the age of 12 and is deemed to comprehend the situation, his or
her preferences may have an impact on the resulting outcome.

When a child attains the age of 16, he or she has the statutory right to select whichever parent
to reside with. The sole exception is in the event of a Court Order declaring that a child
should indeed stay with a specific parent till a given time.

There could be a "Residence Order" or a "Child Arrangement Order" in force, for instance. If
the ruling is merely for contact, they usually expire whenever the child becomes 16, whereas
if the order includes stipulations regarding where the child lives, they usually extend until the
child is 18.

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United States: In truth, Georgia is the sole state in the country that allows a kid to select who
has physical possession of them. Besides that, the youngster ought to be 14 years old or older,
and their decision should be endorsed by a court.
13 states lack legislation that would require a court to examine a child's choice when
determining guardianship. All the other states (including Washington, D.C.) do; courts
then consider the views of matured kids. It is crucial to remember that most custody choices
are made by spouses in dispute settlements; these parents can then take their child's views
into account in any way they see fit. When the partners are unable to arrive at an agreement, a
judge determines which custody order will be in the greatest advantage for the child. When
the court imposes a custody order, the minor is required to obey. This implies that the child
cannot deny to be with the parent that has been granted custody or visiting rights.

California: Except if the court judges that it is contrary to the child's best interests, a kid 14 or
older has the right to address the court. A youngster under the age of 14 may also approach
the court if it is in their best interests.
Georgia: A minor 14 or over does have ability to choose which parent they reside with, until
a judge determines that the chosen adult is contrary to the interests of the child. The
preferences of a youngster who is at minimum 11 but just not yet 14 are considered by the
justice.
Indiana: The court considers the child's preferences, with greater weight granted if the minor
is at minimum 14 years old.
Mississippi: If indeed the court finds that both spouses are suitable to have custody, the
judge may take into account the choice of a youngster aged 12 or older.
Tennessee: The judge decides a child's realistic opinion if he or she is 12 or above. The court
may take a younger child's choice. The opinion of an older child is usually given more
importance.
Texas: A youngster aged 12 or older has the right to speak with the judge confidentially. A
child under the age of 12 may be given exception too given the circumstances.
Utah: The court may examine the child's requests, taking into account the child's maturation.
The preferences of a 14-year-old youngster are given more weight.
West Virginia: If it is in the child's best interests, the judge will accept his or her wishes if the
youngster is 14 or older. This even facilitates the inclinations of a younger person who is

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mature enough already to voice a viewpoint as long that it is in the child's best interests to do
so.

CHILD’S RIGHT TO CHOICE TO PLAY AND RECREATE:

India: Play, which is downplayed and misconstrued in India, as an intrinsic right granted to
youngsters in "Article 31 of the UN Convention on the Rights of the Child"9 (UNCRC,
1992). The privilege of a child to play, recreation, rest, leisure, and involvement in cultural
and artistic life is enshrined in the Article. The 193 nations that already have signed the
UNCRC, which includes India, are obligated by law to preserve and enhance this entitlement
via legislation, regulations, and conduct. The importance of recreation for children's healthy
functioning is well recognised. However, there still is apprehension that children's impulsive
as well as guided play and leisure activities are under threat around the globe as a result of
industrialisation, parental fear, school attainment pressure, and so on.

For several years, child rights specialists and campaigners have agreed that Article 31 is
incompletely understood and, in certain cases, unappreciated by adults. Many anticipated for
something like an authoritative analysis of this provision or a UN "General Comment (GC)"
whose fundamental goal is to increase awareness of a specific component of the Convention.

For the previous 38 years, "India's National Policy on Children" (NPC, 1974) did not
incorporate the term "play" in its language.10 Nonetheless, NGOs engaging with minors have
been seen adopting a rights-based approach frequently, such that the freedom to play appears
to be the only right accessible, especially to the overwhelming number of poor children. The
new NPC (2013) has a robust rights-based strategy and includes the term play in one location,
packed with the other UNCRC Article 31 rights. India, like many other nations, hasn't ever
reported on Article 31 and has supplied no data on the current state of children's play and
leisure, nor has the strategies or actions that encourage or providing openings for these been
discussed.

United Kingdom: The up-and-coming National Obesity Framework, long anticipated by

Downing Street pro to combat the ever-increasing health problems caused by poor diets and

9
Article 31, the UN Convention on the Rights of the Child, 1992.
10
India’s National Policy on Children, 1974.
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little exercise, has spurred the "All Party Parliamentary Group on A Fit and Healthy
Childhood" to release its own report with the identical title. A key component of the cross-
party recommendations is a stronger emphasis on children's informal activities. This would
necessitate prioritising their necessity the opportunity to play - freely, in the shared spaces
and places of a child-friendly public sphere. In 2014, the parliamentary group co-chaired by
erstwhile children's Television personality Baroness Floella Benjamin wanted to call for the
reinstatement of children's play as a ministerial responsibility and the development of a new
domestic play tactic, that would include a legislated obligation on local governments to make
adequate provision for play, as is currently the case in Wales.

Considering the subject's prior exclusion from national conversation since the Coalition
Government scrapped Labour's national Play Strategy for England in 2010 - after only two of
the projected ten years - the initiative drew a remarkably varied range of support. The
Children's Rights Alliance for England advocated that "policy and strategy for children's play
and leisure be returned as a ministerial responsibility," and that "adequate provision for play
be made a statutory duty for local authorities in England."

Local play funding has indeed been severely decreased since 2010, when Michael Gove's
revamped Department for Education (no longer Children, Schools, and Families) abandoned
the majority of its extra-curricular initiatives to help bolster education budgets while still
contributing to 'deficit reduction.' The 12-year Play Strategy (2008) was scrapped, and Nick
Clegg's pledge of a new Coalition play policy fell through.

United States: 196 countries have signed on to this significant global commitment of UN
Convention so as to to preserve the fundamental rights of children. As a result, this has
become the most universally ratified human rights treaty on record. The only nation which
has yet to finish the procedure is the United States. Despite signing it in 1995, it has yet failed
to ratify the Convention; – i.e., it supports the rights outlined in the agreement but is not
legally obligated to uphold them.

RIGHT OF A CHILD TO CHOICE FOR MEDICAL EMANCIPATION:

In the United Kingdom, 16- and 17-year-olds are believed to have the mental ability to
consent to their own medical care, absent substantial evidence to the contrary. Children under
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the age of 16 may agree to their own treatment if it is determined that they have the intellect,
competence, and comprehension to fully comprehend what is involved in their treatment.
This is referred to as Gillick competence. In the United States, emancipation is the process by
which qualified juveniles are awarded some or all of the rights and legal standings of adults.
Ortega v. Salt Lake Wet Wash Laundry, 156 F.2d 885, 890 (Utah, 1945). All states have laws
on the "emancipation" of minors, that is, laws that stipulate when and under what conditions
children become legally independent from their parents.11 Approximately fifty percent of
states govern emancipation through legislation enacted expressly for this purpose.

These laws may establish the needed processes or conditions for emancipation. Statutes differ
greatly from state to state, although under common law, the majority of states permit
emancipation after judicial review. There is no set age of emancipation, although a juvenile is
believed to be emancipated upon attaining the age of majority. 18 is the age of majority in
most states. In India, however, parental consent is required depending on the age and
cognitive development of the kid before to undertaking medical research. Another possibility
associated with the independence of kids in India is that these actions would be condemned
by the family.

CHILD’S RIGHT TO CHOICE FOR EUTHANASIA:

English law prohibits both euthanasia and assisted suicide in the United Kingdom. According
to the Suicide Act of 1961, assisted suicide is unlawful and punishable by up to 14 years in
jail. Minors in the Netherlands may seek euthanasia beginning at the age of 12, however
parental approval is required until they reach the age of 16. In principle, sixteen- and
seventeen-year-olds do not require parental consent, but their parents must participate in the
decision-making process.

At the age of 18, adolescents are permitted to seek euthanasia without parental consent. In
1982, the question of neonatal euthanasia emerged in the United States. Baby Doe, a new-
born with Down syndrome, tracheoesophageal fistula, and oesophageal atresia, was the major
case. The infant died of malnutrition and dehydration as a result of the parents' refusal of
surgery as well as feeding and water. In 1983, "Baby Jane Doe" was born with spina bifida
and was treated with antibiotics and bandages rather than surgery. These instances resulted in
11
Ortega v. Salt Lake Wet Wash Laundry, 156 F.2d 885, 890.
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the Baby Doe Amendment to the Child Abuse Law, which expanded the term of child
abuse/neglect to include delaying medically necessary care from disabled children. In 1985,
the law known as the Baby Doe Rules went into force.

The Rules stipulated that judgments based on the infants' future quality of life were invalid
and encouraged reporting procedures for such activities. However, the Baby Doe Rules have
been seldom implemented since their implementation. In the United States, paediatric
euthanasia is currently illegal. In addition, medical emancipation of a kid in India is decided
on a case-by-case basis by the relevant court. Such applications are often proposed by parents
and not by the children themselves. Thus, we might conclude that there is currently no
method for minors to have a say in euthanasia.

PREFERENCE OF CHILD IN CHOOSING EDUCATION

Preference of child in choosing education is a broad parameter that encompasses the child’s
right to be heard in whether they wish to pursue academics at all, the subjects they wish to
opt for, the school they want to admit in, the course they wish to pursue etc. This is broadly
divided by varying degrees of choices presented to the child for primary, secondary and
senior secondary education (phrasing differs across authors and regions) based on the
principle of evolving capabilities.

India: The education of children in India mainly falls under the regime of the Right to
Education Act.12 There is no express choice that a child can exercise with respect to their
schooling/educational opportunities in India. The Act not only refrains from mentioning any
right that respects the child’s opinion in education, but rather it entrusts the parent with a duty
to compulsorily admit the child to school at least till completion of elementary education (8 th
standard)13: “Duty of parents and guardian.—It shall be the duty of every parent or guardian
to admit or cause to be admitted his or her child or ward, as the case may be, to an elementary
education in the neighbourhood school.”14 This is in line with the scheme of the Act which
steers away from topics of choice and reiterates a regime of ‘compulsory’ education, meaning
that every child, regardless of their personal choice, must attend school from six to fourteen

12
Right to Education Act 2009, Act No. 35 of 2009 <https://legislative.gov.in/sites/default/files/A2009-
35_0.pdf> last accessed 19 October 2022.
13
Ibid, section 2(f).
14
Ibid, section 10.
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years in a neighbourhood school till the completion of elementary education till the 8th
standard in India.15 However, it is pertinent to note that the Act does not limit a child's ability
to choose a school for admission that may not be in the neighbourhood of their home while it
guarantees every child the right to free and compulsory education in a neighbourhood school.
To put it another way, the child is not required to apply for admission solely to the school in
his or her neighbourhood.16

United Kingdom: The UK Human Rights Act governs the regime of education.17 It is pari
passu with the EU Protocol 1’s clause on the Right to Education.18 It states that: “No person
shall be denied a right to an education. In the exercise of any functions which it assumes in
relation to education and to teaching, the State shall respect the right of parents to ensure such
education and teaching is in conformity with their own religious and philosophical
convictions.” Thus, the law restricts itself to rights of the parents to choose and does not
acknowledge such a right for the child. Even the philosophical convictions that may be
chosen are that of the parent.

Further, with respect to exercising the right to choose a school, the UK Courts faced the
question wherein children who resided in the school's specified catchment area were given
priority under the admissions policy of a primary school in West London. Due to the pressure
on class sizes, several children who lived outside of this area but had brothers or sisters
enrolled in the school were turned away. A number of parents disputed this judgement. The
court determined that the admissions policy of the institution did not infringe on the right to
an education. It emphasised the need for admissions officials to follow a fair procedure when
processing applications when there are more applicants than available school spots. This
implies, among other things, that each application must be fairly evaluated on its own merits
before a decision is reached.19

15
Ibid, section 3.
16
Ministry of Human Resource Development, ‘The Right Of Children To Free And Compulsory Education Act,
2009: Clarification On Provisions’
<https://www.education.gov.in/en/sites/upload_files/mhrd/files/upload_document/RTE_Section_wise_ration
ale_rev_0.pdf> last accessed 19 October 2022.
17
Human Rights Act <https://www.legislation.gov.uk/ukpga/1998/42/schedule/1> last accessed 19 October
2022.
18
Protocol 1, Article 2.
19
R (Hounslow London Borough Council) v. School Admissions Appeal Panel for Hounslow London Borough
Council (2002).
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United States: Many families now have new educational options thanks to the No Child Left
Behind Act. If their child attends a public school that requires improvement, this federal
statute gives parents the option of switching to another one or taking advantage of free
tutoring. In addition, if the public school a child attends is hazardous, the parents can select a
different one. Additionally, the law provides some safeguards for parents who homeschool
their children, pays some services for students in private schools, and encourages the
development of additional independent charter schools. Finally, it mandates that information
be made available to parents so they can choose an appropriate educational path for their kid
by State’s and local school systems.20 Thus, the law is well-thought in terms of effective
choice, but only for parents. The choices available cannot be exercised by the child
independently.

PREFERENCE OF CHILD IN CHOOSING OCCUPATION

Preference of child in choosing occupation includes effectively exercising the right to choose
what the child wishes to pursue as a vocation, freedom from child labour and freedom from
exploitative work. There are major differences that can be seen in developing and developed
nations and across cultural realms. E.g. Children routinely participate in cleaning, newspaper
routes and other vocations to earn pocket-money in most Western nations. These differences
are very well reflected in the laws as in US and UK, there are better detailed laws, delineating
employment norms for children of different ages.

India:Article 24 says that “No child below the age of fourteen years shall be employed to
work in any factory or mine or engaged in any other hazardous employment.” Child labour
in mines, industries, and dangerous situations is prohibited under the fundamental right of all
citizens against exploitation. Further, for professions not considered ‘hazardous’, one may
turn to the Directive Principles of State Policy which say “(e) that the health and strength of
workers, men and women, and the tender age of children are not abused and that citizens are
not forced by economic necessity to enter avocations unsuited to their age or strength.”
However, the exercise of an effective right becomes an issue when the parents and children
do not agree on the ‘best interest’ of the child. This can widely be seen in the case of child
actors. India also has a Child Labour Prohibition Act.

20
US Department of Education, ‘Choices of Parents’ <https://www2.ed.gov/nclb/choice/index.html> last
accessed 19 October 2022.
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United Kingdom: There are limitations on the type of work you can do, where you can do it,
and how long you can work each week if you are under 18 and considering starting a job or
are already working. In general, you can only get a job if you're under 13 years old. You can
perform mild labour once you turn 13 years old. You are thus prohibited from working in any
position that can jeopardise your health and well-being or hinder your academic progress.
You could go on a paper run, for instance.

When you turn 14, you can work in a variety of jobs, but there are still some that you can't.
You cannot, for instance, work in a factory or on a construction site. Further, Children's
working hours are governed by a variety of laws, as per their age. For 14-year-old, when
school is out for the summer, you are only permitted to work up to five hours on a weekday
or a Saturday and no more than two hours on a Sunday. During the school year, you are not
permitted to work before 7 a.m. or after 7 p.m. The rules keep changing for different ages to
prevent hindrance in education and prohibit exploitation. there are well-thought rules on paid
leaves, minimum wage and other employment laws, even for children.

United States: In the United States, there are both federal and state laws against child labour.
The Fair Labor Standards Act is the broadest federal statute that prohibits using and abusing
young labour (FLSA). The FLSA's rules on child labour are intended to safeguard young
people's educational prospects and forbid the hiring of them for jobs that are hazardous to
their health and safety. The FLSA limits the number of hours that children under the age of
16 may work and identifies hazardous jobs that are too risky for them to undertake.

According to the FLSA, children under the age of 14 are not allowed to work in non-
agricultural jobs, those between the ages of 14 and 16 are allowed to work in certain
occupations for a set number of hours, and those between the ages of 16 and 17 are allowed
to work an unlimited number of hours in non-hazardous jobs. There are some situations when
these laws are exempt, including parent-employed positions, newspaper delivery, and child
actors. Generally speaking, agricultural employment is subject to less restrictions.

The regulations governing youth employment vary between states. Each state has minimum
standards, such as the earliest age at which a kid may start working, the maximum number of
hours a child may work per day, and the maximum number of hours a child may work per

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week. The minimal standards for agricultural work in each state are listed by the United
States Department of Labour. When state and federal laws on child labour diverge, the statute
with the stricter standard is applied.

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RIGHT TO CHOICE || CHILD RIGHTS PROJECT

REALISING THE GOAL OF THE EFFECTIVE CHOICE: THE WAY FORWARD

Children are defined as those under the age of 18 under Article 1 of the CRC, and this
encompasses children of all ages and developmental stages and maturity. The idea that
infancy is not a static setting but rather an unfolding narrative is embraced by the acceptance
of the principle of the child's developing capacities within Article 5 of the CRC. Children are
seen as dependent minors who rely on a parent, guardian, or other adult with parental
responsibilities to make decisions on their behalf.

The existence of parental responsibility should be acknowledged as being for the child's
benefit. As the child reaches the age of majority, the youngster may be able to assume
responsibility for making decisions about his life and making some autonomous decisions
independent of his parent or guardian. Parental rights have been regarded as a decreasing
right.

Rights have a transformative aspect because they have the potential to reduce victimization
and dependence by changing the rights holder into a powerful individual who commands the
respect of those in the legal systems. Rights create mutual zones of respect, challenging those
who want to act in the best interest of children to promote the empowerment of children
instead.

The best interests of the child must be given top priority in all decisions affecting the child,
according to Article 3 of the CRC. One could argue that it is in the child's best interests to be
empowered. All signatories to the CRC must think about how to better include the idea of a
child's developing capacities and participation rights in the law generally and in connection to
a child's medical treatment in particular. They may also look at the idea of the mature minor.

The CRC is more than just a set of rights based on a model of child welfare and child
protectionism, as evidenced by the focus on the child's growth and changing capacities. The
right of the child to the realisation of his rights in accordance with his developing capacities
and the right of the child to participation in the decision-making processes of matters
affecting his life in accordance with the child's developing capacities are two alternative
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RIGHT TO CHOICE || CHILD RIGHTS PROJECT

rights frameworks advocated in the CRC as seen in Articles 12 and 5. To illustrate the
concepts in Articles 5 and 12, the right to health under Article 24 and the ability to make
autonomous decisions on medical treatment are stressed.
Through this project, the authors have attempted to further the understanding of Articles 5
and 12 and how these Articles can pave the way towards the empowerment of the evolving
child, thereby creating a potential for the autonomy rights for the child. This framework is
sustainable in theory and in practice. While undertaking this project, the authors undertook an
extensive survey of children to accurately depict the manifestation of these ideals and rights
as discussed in the CRC, in the lives of children in and around us.

The authors discovered through the responses of children, that the right of a child to choose
the important aspects governing their lives is hardly ever truly in the hands of the children.
No matter how many children believe that they should be given the right and autonomy to
choose for themselves when it comes to important and basic life decisions, their own
experience at their homes suggests that it is the parents who command a control over these
choices. The right of choice of the child remains elusive for the most part, which begs the
question – do children really have effective control over the decisions that impact their day to
day lives?

The authors submit that the visibility of these concepts in these Articles deserve the attention
of policy makers and legislators alike for the benefit of the child, the family and society.
Articles 5 and 12 of the CRC are more widely known, which raises awareness of children's
rights and the kid. The CRC can be seen as offering a set of rights for the developing child
who is steadily progressing toward adulthood and empowerment.

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