Applications by children under the Children Act 1989 : children 'divorcing' parents

The Children Act 1989 recognized for the first time, in statutory form, that children can apply, with the leave of the court, for orders relating to their upbringing including an order relating to where he or she might wish to reside. This ability has led to the suggestion that children can 'divorce' their parents.;This work considers these changes in two parts. Part I contains a theoretical examination of the relationship between children and the law. It is argued that children, like all human beings and because they are human beings, are radically autonomous (are ends in themselves) and thereby are the holders of strong (ontological) rights which provide the moral basis for law. It is posited that it is the responsibility of the superior courts to uphold the ontological rights of citizens (including children) and to ensure that all human beings are treated as ends in themselves.;Attitudes to children in law are, however, at present predicated on welfare concerns which are underpinned by the philosophy of paternalism which sits in contradistinction to the proposition that children be treated as ends in themselves. This is true both in various mainstream theoretical analyses of how the law should look at children and, as is shown in Part II, in past and current practice of how the law has and is looking at children.;In Part II the theoretical position advanced in Part I is used to assess whether the Children Act itself and its interpretation in the courts accords with the strong rights thesis. It is argued that as the Children Act is predicated on welfare and not autonomy that it does not accord with this thesis and it is suggested that the courts in considering the new legal rules are doing so paternalistically; a position which is ontologically indefensible.