CHILDREN are more than small, imperfect adults whose interests are to be subordinated to those of adults.

Childhood is more than a preparation for adulthood. Learning is more than the development of adult potential and the transformation of immature, irrational children into mature and rational adults. Their interests and day-to-day happiness should carry the same weight as those of adults.

What legal rights do and should children have? How does the law protect them and how does it treat them when they break the law? What special treatment do they need before joining the adult world?

While the law is a blunt tool, children are subject to its strictures. The law imposes on them society’s views concerning their rights and responsibilities. Several areas of children’s law have recently generated considerable debate: the prenatal rights of children, genital mutilation, physical chastisement, parental contact, the government’s education proposals, sexual abuse, child protection, criminal responsibility, age discrimination and children’s representation.

Taking the first of these subjects, a new living comes into existence at the time of conception and has existed for nine months by the time of birth. In a case called Vo v France, the European Court of Human Rights acknowledged that the unborn child/foetus “belongs to the human race,” which justified states giving it some legal protection. However, in general, it is only at birth that a legal person comes into being and acquires legal rights.

Once the baby is born, the law partially protects their physical integrity. Female genital mutilation (FGM) is practised mainly within certain Muslim societies and communities and is unlawful in the UK; women and girls are protected from it by law. Male genital mutilation in the form of circumcision without medical justification is not prohibited, mainly because of Jewish and Islamic traditions. The late Sir James Munby, when president of the High Court’s Family Division, held that whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is “quite different” with male circumcision. Society and the law tolerates it when performed for religious, cultural or “conventional” reasons, while no longer being willing to tolerate FGM in any form.

Traditionally, young children have been subjected to physical chastisement, sometimes repeatedly. Whether this should be outlawed is another area of heated debate. Smacking, slapping and the like have now been banned in Scotland and Wales. In April 2024, the Royal College of Paediatrics and Child Health called for parents in England and Northern Ireland to also be banned from physically punishing their children. According to this view, children should have the same legal right not to be assaulted as adults. The parent should be like a goldsmith who moulds their leaf with gentle, careful pressure rather than blows, St Anselm suggested.

The growing child benefits from free, state-funded education or training and children with special educational needs or disabilities (SEND) are entitled to special provision. There are more than 1.7 million pupils with SEND in England, almost 20 per cent of the school population, and the government spends £12 billion a year supporting them.

Some 5.3 per cent of pupils have an Education, Health and Care plan (EHCP), while 14.2 per cent of pupils receive some support. Boys constitute 71.4 per cent of those with an EHCP and 61.2 per cent of those entitled to support.

The SEND tribunal hears 24,000 appeals annually against decisions regarding special educational needs, 96 per cent of which are successful.

The Department for Education intends a root-and-branch reform of the SEND system and a white paper called Every Child Achieving and Thriving was published on February 23 2026. School and college placement rights will be weakened and the tribunal’s powers to order an appropriate school or college place removed. Indeed, SEND tribunal judges have apparently already been told that their services will not be needed in future. The red flag is Frederick Douglass’s warning that “It is easier to build strong children than to repair broken men.” Reducing childhood support may be the more expensive option.

The school problems of children include bullying, mental ill-health, unauthorised absences, truanting, suspension and exclusion. Over one in five school children are frequently bullied and almost one million people a year are referred to the Child and Adolescent Mental Health Service (CAMHS). According to NHS England, 20.3 per cent of eight to 16-year-olds have a probable mental disorder and 50 per cent of those with lifetime mental illness experience symptoms by the age of 14.

The headline is that our children are often unhappy or troubled in the society we created for them. Local authorities have a duty to safeguard children in need, dating back to The Prevention of Cruelty to Children Act of 1889.

There are aspects of child protection, in particular protecting children from sexual abuse and physical or verbal violence, that are of fundamental importance. As the front page of The Independent reported in 2014, I resigned from the National Council for Civil Liberties (now called Liberty) in 1979 because of its policy on sex with children and its links to the Paedophile Information Exchange (PIE), which was invited to an NCCL conference in London.

Patricia Hewitt was the chief executive of NCCL at the time and Harriet Harman a legal officer. The NCCL’s position was that only children under the age of ten were absolutely incapable of consenting to sex. The age of consent should be lowered to 14 and sex with a child between 10 and 14 should not be unlawful if the child was capable of consenting. The crime of incest should be abolished. That was shameful. Adult sexual abuse and violence towards children must always be investigated and punished.

Other aspects of child protection and safeguarding seem heavy-handed and to infantilise young people. For example, in 2025 Wes Streeting announced that under-16s in England will be banned from buying energy drinks.

Curtailing children’s decision-making, isolating them from the adult world and overdramatising youthful indiscretion ill-prepares them for the world they are about to join. It also shuts down relatively harmless outlets for normal adolescent rebellion, in a way that often exacerbates conflict and triggers more extreme behaviour. As John Locke put it, children must be permitted the foolish and childish actions suitable to their years. They need plenty of rope, just not enough to hang themselves.

As the child ages, they may come into conflict with the criminal law. Legal codes about when a child becomes criminally responsible have always varied. Anglo-Saxon laws shifted between 10, 12 and 15. Our current law states that no child under 10 is responsible. In Sweden no-one under 15 can receive a criminal sanction and in Spain and Italy the relevant age is 14.

In the year to March 2024, about 3,400 children aged 10 to 14 were cautioned or sentenced in England and Wales. Children’s brains are not fully developed at the age of 10 and there is now a campaign, supported by Lady Hale, the former president of the Supreme Court, to raise the age of criminal responsibility to 14. The proposal has the blessing of the United Nations but is opposed by our government. I practised criminal law and, to my mind, almost nothing is more socially degrading or individually damaging than treating young children as criminals.

Children between the ages of 10 and 18 are generally dealt with by youth courts. Although the stated aim of the youth justice system is the prevention of offending, the proven reoffending rate for children is 31.8 per cent, and children who reoffend commit an average of 4.44 further offences. The rate must be higher than that, because the statistics only include children who are caught.

Children in custody may be held in young offender institutions (YOIs), secure training centres (STCs) or secure children’s homes. In the year to March 2025, there were an average of around 420 children in custody at any one time, 110 of whom were held in secure conditions. This is considerably fewer than at the start of the century, so progress has been made.

The Howard League for Penal Reform has argued for many years that prison is no place for a child and a number of official reports have expressed considerable concern about the conditions of detention. There are around 5,000 “use of force incidents” in YOIs and STCs annually and the prison inspectorate has found that children are subjected to widespread solitary confinement.

In March 2024, the government announced that girls sentenced to youth custody will no longer be placed in young offender institutions. That is very welcome. Hopefully, boys may benefit from a similar initiative.

As children near adulthood, they can work part-time or take on apprenticeships. However, employers are entitled to pay lower minimum wages to 16- and 17-year-olds and 18- 21-year-olds compared with those over 22, who are entitled to the full minimum wage. Those going on to university must take out substantial loans at fairly punitive interest rates. Few young people can afford to live independently, and free travel and other concessions are commonly offered only to the (sometimes well-heeled) over-65s; young people must usually pay the full cost.

It is difficult to avoid the conclusion that the over-65s have created a system that benefits them economically at the expense of the young. Having benefitted from generous state support, they have pulled up the ladder. The solutions may include replacing student loans with a graduate tax paid by all full-time graduates of any age; ending wage discrimination; ending concessions for over-65s who have more than a certain income and transferring them to children and young people; and driving down property prices by rent controls and restrictions on the ownership of second homes.

The government intends to give 16-year-olds the right to vote in UK elections. This seems fair as they are as much affected by national policies as adults and old enough to be in the workplace. Youth parliaments have been established in Scotland and Wales and for the UK, but they need to be given a budget and proper powers.

It used to be said that the French mistreat their animals and the English mistreat their children. The second of these propositions is probably an exaggeration when it comes to how the law treats children. However, they could be better served. In childish vein, adults have constructed laws and an unfair social and economic framework that often benefit them at the expense of children.

Anselm Eldergill was a judge. He is a solicitor and an honorary professor at Queen’s University Belfast.