Children's Rights, Paternal Power and Fiduciary Duty
From Roman law to the Supreme Court of Canada
Bibliographic Data
| ID | 7540124 |
|---|---|
| Authors | Anne McGillivray (1Faculty of Law, University of Manitoba, Winnipeg, Canada, corresponding author) |
| Year | 2011 |
| Volume | 19 |
| Issue | 1 |
| Pages | 21-54 |
| Publication date | 2011-01-01 |
| Peer Reviewed | Yes |
| Open Access | No |
| Type | ARTICLE |
| Venue | The International Journal of Children s Rights (JOURNAL) |
| Journal identifiers | ISSN: 0927-5568 • E-ISSN: 1571-8182 |
| Publisher | Brill (PUBLISHER • NL) |
| DOI | 10.1163/157181810x527996 |
| OpenAlex | W2000510276 |
| Language | EN |
| Citations received | 5 |
Parental rights originate in patria potestas, the proprietary power of the Roman father, and its incidents of custody, control and corporal punishment. Parental rights as proprietary rights, as rights over another, cannot co-exist with children's rights. What, then, are parental rights in the age of children's rights? This Essay surveys the influence of Roman doctrine on modern law in and through the Supreme Court of Canada. The court acknowledges children's rights, views proprietary rights over children as a thing of the past and recognizes custody as the child's right, not the parent's. Yet the court vitiated the fiduciary standard for parents, limited state parens patriae jurisdiction and upheld two of the three incidents of patria potestas. By making childhood an excuse for avoiding principled rights analysis, conflating adult interests with children's rights and confusing assault with touch, the court upheld the proprietary rights of corporal punishment and control. If parental rights are understood as rights correlative to parental fiduciary duty, and if rights are seen as markers of relationship rather than its antithesis, then the law is rid of archaic notions of parental rights. The way is open to substantive judicial and social engagement with the rights of the child
Duty · Fiduciary · Fundamental rights · Human rights · International human rights law · Jurisdiction · Political science · Reservation of rights · Right to property · Supreme court · Ethics and Legal Issues in Pediatric Healthcare · Law · Legal Systems and Judicial Processes · Multicultural Socio-Legal Studies
| Unique citing works | 5 |
|---|---|
| Citations per year | 0,38 |
| Citation span | 2013 - 2024 (12) |
| Citation velocity | recent |
| Highly cited | No |
| Citation types | Neutral: 5 |