The Best Interests and Human Rights of Children: An Ethical-Philosophical Framework Based on Martha Nussbaum's Capabilities Framework and Alan Gewirth's Community of Rights

Canada signed the Convention on the Rights of the Child twenty years ago, but a recent Senate study concludes that children's rights are not embedded in Canadian law, public policy, or the national psyche. This thesis identifies three ethical tensions about children's rights that hinder implementation of the Convention, and it asks if it is possible to develop a more robust ethical foundation to resolve them. Do children's rights protect their interests, their freedom, or some combination of both? What is the balance between the role of parents, the state, and young people themselves in realizing their rights? Can the tension between universal rights and respect for cultural and religious diversity in raising children be resolved? The study focuses on a core principle of the Convention, the Best Interests of the Child, which is identified as a primary consideration for all policies and decisions relating to children. It examines four approaches to application of this principle that try to resolve the basic tensions about children's rights but fall short. These are family autonomy, liberal paternalism, dynamic self-determination, and utilitarianism. Looking beyond theories of children's rights, this thesis argues that the capabilities framework articulated by Martha Nussbaum in Women and Development and the mutuality of rights theory articulated by Alan Gewirth in The Community of Rights can provide a stronger ethical foundation for children's rights. Gewirth's focus on prospective productive agency and Nussbaum's holistic approach to developing core capabilities provide greater ethical specification for the meaning of the best interests of children. Gewirth's Principle of Generic Consistency and articulation of the mutuality of rights and responsibilities provide a sound basis for a policy framework on children's rights. A clear focus on developing capabilities and what is most needful for human action can ethically ground guidelines for determining best interests and less adversarial processes to resolve conflicts between different interests