Brando, Nico (2017). 'The Child’s Right to Choose: Well-being and Agency Claims during Childhood' Paper presented at the annual conference of the HDCA, Cape Town 2017.


There seems to be a certain consensus on the idea that children have certain fundamental rights. We would be puzzled by the idea of children not being entitled to have their basic needs protected. The inevitable fact that individuals during the first years of their life are relatively more vulnerable and dependent on others for their survival and subsistence raises an important claim for children to have their basic welfare ensured. But how farther can and should the claims of childhood go remains to be a debated question. For the last couple of decades, the philosophical community has taken a strong interest in assessing the justified claims of childhood. Should children and adults have the same rights? Should they have rights that adults do not have? And should they not be conferred certain rights to which the adult population is entitled? In this paper, I intend to revisit these questions with a special focus on the issues that arise from the possibility of granting agency rights to children. A study of the growing research on capability theory and childhood can offer a new perspective to the philosophical literature on the subject.

This paper intends to revisit some of the most relevant contributions of the philosophical literature on children’s rights through Amartya Sen’s distinction between well-being and agency claims that an individual may have. I argue that three different categories exist in the literature with regards to the well-being/agency claims of childhood: a differential approach, which argues that there should be a clear distinction between children and adult rights, stating that while adulthood justifies claims to have certain freedoms and choices protected, childhood should be seen as a stage of life in which (only) well-being achievement should be protected. Gradualist approaches amend the previous conception by stating that no clear-cut distinction should exist, but rather that the claims of childhood should be considered as evolving from exclusively protecting well-being achievements to protecting freedoms and choices through the gradual development of the child. Finally, the in-trust approach argues that if agency is considered to be a fundamental part of a person’s life, it should be protected as a right always, even if the individual does not have the capacity to exercise it. It considers that, children (who are incapable of fully exercising their agency) should have all the rights that they cannot exercise protected in order to ensure that they cannot be violated prior to their capacity to exercise them. 

Although there are fundamental differences between these understandings of the claims of children to agency rights (they all agree with protecting children’s well-being) a fundamental commonality appears among them: the basic assumption that childhood (from a higher to a lesser degree) is a stage of life in which agency cannot be exercised. By standing on capability theorists of childhood, I argue that all of these approaches are taking a largely restrictive understanding of the capacities of children to exercise agency due to their comparative understanding of childhood through adult standards, and that, by looking at childhood in itself, we get a picture of childhood agency that would demand a more expansive protection of certain freedoms and choices during childhood. Not only should children’s agency claims be protected in-trust, nor only should their freedoms and choices be ensured through an understanding of a child’s development, but that the actual capacities of children to choose and to act in the present as active agents should be taken seriously if we wish to do justice to the claims of the youngest individuals in our society.

Section 2 introduces Amartya Sen’s distinction between well-being and agency claims of a person; Section 3 looks at the three most relevant approaches in the philosophical literature on the way agency claims during childhood are understood (differential, gradualist and in-trust); Section 4 expands on this literature by exploring the different dimensions through which the agency rights of children could be framed; based  on the dimensions presented previously, Section 5 proposes a three-tiered method for understanding the rights of children (as capacity, competence and capability claims); and Section 6 closes.

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