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possible to apply to court to force a government to comply with its international obligations.

Parental rights

1.14The focus in legislation and the common law has been on parental rights rather than on parental responsibilities.  In Cretney’s12 view, parents have the following rights:

the right to physical possession of a child,

the right to control his education,

the right to discipline the child,

the right to choose the child’s religion,

the right at common law to the services of the child,

the right to represent the child in legal proceedings,

the right to consent to medical treatment,

the right to consent to marriage, and

the right to consent to an application for a passport.

1.15Additional rights include administering the child’s property,  agreeing to adoption, arranging for a child to leave or emigrate from the jurisdiction, choosing a surname, and appointing a testamentary guardian for the child.13  However, a paradigm shift in thinking has occurred and continues to occur from this focus on rights to a focus on parental responsibilities.14  This is reflected in the English Children Act 1989, the Children (Scotland) Act 1995, the Australian Family Law Reform Act 1995 and the United Nations Convention on the Rights of the Child.

Children’s rights

1.16Allied with this paradigm shift has been a focus on children’s rights independent of the rights or responsibilities of parents.  Henaghan suggested that in analysing children’s rights there are three concepts that must be balanced: “the child’s autonomy to express views and make decisions; the family’s responsibility to nurture and bring up children; and the state’s responsibility to provide services which protect and enhance the lives of children”.15  A number of questions arise from these principles for which there are no easy answers:

How old should a child be before he makes decisions or has his wishes taken into account?

What weight should be given to the wishes or decisions of children?

What is the basis for imposing responsibility on members of a family?

12Cretney, Principles of Family Law (1979, 3rd ed).

13 Law Commission Working Paper,  Family Law; Review of Child Care Law; Guardianship, (No. 91: 1985), paragraph 2.25.

14 A paradigm shift is defined by Barker in The Business of Discovering the Future (1992) as a dramatic and collective shift in perception which leads to a new set of rules being created and used.

15 “The 1989 United Nations Convention on the rights of the child”, in “Rights and Responsibilities”, Papers from Symposium on Rights and Responsibilities of the Family, Wellington, New Zealand, (October 1994).  At 32.

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