CYIL 2012

DALIBOR JÍLEK CYIL 3 ȍ2012Ȏ Children entrust choice to their parents, who make decisions on their behalf. This gives rise to their dependent legal status. 12 Parents, other adult representatives or guardians are to make decisions as their children would if they had the capability of choice. 13 Hart’s thesis is now contested by recent psychological findings which indicate that children have cognitive abilities and think in rational terms about the people and the world around them. 14 2.2 Restraint on liberty The second element in the internal triad involves both coercion and restraint . T he liberty of the person and the lack thereof are determined by coercion and restraint. Hart explains the nature of coercion and restraint more in terms of external coercive effects. Coercion entails the use of external threats, thus making choice unavailable to the individual. At other times coercion is directed against the outcome of choice: action . Restraint includes any action that makes the exercise of choice impossible. Hart refers to the most extreme examples of murder or enslavement of the person. 15 Restraint may also apply to less extreme and less intensive 16 intrusions into personal liberty, i.e. retention, arrest, remand, detention or imprisonment. Clearly, such restraint is not performed as a private act. A politically organized society intrudes upon the liberty of the individual on general public grounds, such restraint being either justifiable and justified under the primary norms of the legal system, or unjustifiable and unjustified. 2.3 Choice The third element is interlinked with the aforementioned elements within the relational triad. This means that the person is free to the extent that it has (or exercises) choice . 17 A non-citizen detained so that he or she cannot leave for abroad cannot be entirely prevented from escaping from a closed facility where he or she has been placed on the basis of an administrative decision. This adult is entirely unfree within the different behavioural activity. He does not obtain any other basic choice than the option of deciding whether or not to remain at the facility. With regard to children, Hart presumes that they are not capable of this choice. The question is if an unaccompanied child who is a non-citizen can behave as an adult when he finds himself in the same situation. Hart answers in the negative. The actual answer is neither simple nor unambiguous. It depends on the development of the child. 12 See Committee of the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), CRC/ GC/2003/5, 27 November 2003, p. 7. 13 ARCHARD, D. W., “Children’s Rights”, The Stanford Encyclopedia of Philosophy (Summer 2011 Edition) , ZALTA, E. N. (ed.), URL = . 14 GOPNIK, A., How Babies Think. http://www.scientificamerican.com/sciammag/?contents=2010-07. 15 HART, H. L. A., op. cit 1, p. 175. 16 Guzzardi v. Italy , judgment of 6 November 1980, paragraph 93. 17 HOFFMAN, J., GRAHAM, P., Introduction to Political Concepts . Harlow: Pearson Education Limited, 2006, p. 38.

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