Clashing rights, the welfare of the child and the Human Rights Act

Fenwick, Helen

Abstract

Under the Human Rights Act so far there has been until very recently little judicial or even academic recognition of the difference between resolving clashes of Convention rights and addressing conflicts between utilitarian concerns and such rights. This article has chosen to illustrate that failure of recognition and to consider methods of resolving the conflict between rights, by concentrating on one particular clash of rights – that between media free speech under Article 10 and the privacy of children under Article 8. It argues for presumptive equality for the two rights and for conducting a 'parallel analysis' of their application to the circumstances of a particular case. It contends that therefore the principle that the child's welfare is paramount must be abandoned in its present form, as must the presumptive priority accorded to Article 10 where that principle is not found to apply.

Citation

Fenwick, H. (2004). Clashing rights, the welfare of the child and the Human Rights Act. Modern Law Review, 67(6), 889-927. https://doi.org/10.1111/j.1468-2230.2004.00517.x

• Journal Article Type: Article
• Publication Date: Nov 1, 2004
• Deposit Date: Aug 11, 2008
• Journal: Modern Law Review
• Print ISSN: 0026-7961
• Electronic ISSN: 1468-2230
• Publisher: Wiley
• Peer Reviewed: Peer Reviewed
• Volume: 67
• Issue: 6
• Pages: 889-927
• DOI: https://doi.org/10.1111/j.1468-2230.2004.00517.x
• Keywords: Child, Privacy, Rights, Welfare.
• Public URL: https://durham-repository.worktribe.com/output/1622975
• Publisher URL: http://www.blackwell-synergy.com/doi/abs/10.1111/j.1468-2230.2004.00517.x