The definition of a child
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The definition of a child

The question "Who is a child?" is an artificial construction filled with cultural, physical and psychological practices created by adults as a comparative negative. A child is an individual who is not yet an adult. A child is seen as in need of protection, vulnerable and immature.

Childhood, as Fionda states, is seen by many as just a "biological or psychological phase of life somewhere between infancy and adulthood".

Postman states that "our genes contain no clear instructions about who is and is not a child and the laws of survival do not require that a distinction be made between the world of an adult and the world of a child".

Article 1 of the United Nations Convention on the Rights of the Child (UNCRC) defines a child as "every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier". This article accepts the fact that childhood is an artificial concept adopted to suit competency because, if this were not the case, why is the phrase "majority is attained earlier" added?

An important question is when does childhood end? The legal age has changed over time and is not consistent in our laws. Article 157 of the Civil Code defines a minor as "a person of either sex who has not yet attained the age of 18 years".

Article 2 of the Children and Young Person's (Care Orders) Act defines a child or young person as a person under 16.

If children can be legally emancipated to conduct commercial acts of trade at 16 (article 9 of the Commercial Code) and are eligible to work (article 2b of Young Persons (Employment) Regulations), or even get a bank account in their own name (article 971A of the Civil Code), not to mention get married (article 3 of the Marriage Act), should they still be considered children?

The term child differs across the world. In Bangladesh a consultation by UNICEF shows how age has little influence on children's perceptions of the status of childhood. A 10-year-old male said that a "Shishu (a stage of innocence and ignorance) is someone below four-years-old" while a 15-year-old female said that "a girl is not a child anymore when she gets married; she becomes a woman". In Nepal, girls assume adult roles at 12 and boys at 14. Indian girls are seen to become adults at 14 while boys at 16.

Roman law specified three stages of childhood: infantia where a child is incapable of speech; tutela impuberes where a pre-pubescent child requires a tutor and cura minors, which defines post-pubescent young persons requiring a guardian prior to attaining majority.

Nowadays, minors can be divided into two wide categories: adolescents for the older minors and pre-adolescent children for the younger ones.

Another dilemma in childhood is the question of when does it start. The Declaration and the Convention of the Rights of the Child state that the child is entitled to legal protection "before as well as after birth". This definition does not exclude the unborn children and, yet, it does not explicitly include them either. It is up to the states to clarify their position such as Argentina, which, upon ratification, lodged a declaration stating that a child includes every human being from the moment of conception.

The legal term of child varies not only from one state to another and from time to time but even within the same state. Although the beginning of childhood is still a hot debate, there is an emerging trend in regional and international law towards harmonising 18 as the end of childhood.

Dr Mangion is a lawyer with a special interest in family and child law.

annmarie.mangion@gmail.com

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