tacit notions of childhood

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DOI: 10.1177/0907568204047106 2004; 11; 449 Childhood

Jantine Hemrica and Frieda Heyting in decision-making regarding arrangements in case of parental divorce

Tacit Notions of Childhood: An analysis of discourse about child participation

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Introduction

An important issue, which plays an overt or covert part in discussions aboutgranting or denying rights to children, are the questions in what respects andto what extent children are to be considered different from adults in specificcontexts, and what consequences these differences should have for how theyare to be treated in such contexts. As we do not have any indisputable crite-ria to answer such questions, we have to renegotiate definitions of ‘child-hood’ and ‘adulthood’ time and again. Results vary depending on historical,cultural and contextual circumstances, as Maundeni’s (2002) research inBotswana with respect to children’s rights in parental divorce recently illus-trated. This variability makes childhood a construction rather than an‘object’ (King, 1997: 12). Even between different discourses within the sameculture, constructions of childhood will vary, as Smeyers and Wringe (2003)point out, and they illustrate this with the different child concepts in legal

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TACIT NOTIONS OF CHILDHOODAn analysis of discourse about child

participation in decision-making regardingarrangements in case of parental divorce

JANTINE HEMRICAAND FRIEDA HEYTINGUniversity of Amsterdam

Key words: childhood, children’s rights, child welfare,

discourse analysis, parental divorce,presuppositions

Mailing address:Frieda Heyting

University of Amsterdam, Faculty ofSocial and Behavioural Science,

Department of Education, Room B10.05,PO Box 9420, 1090 GE Amsterdam,

The Netherlands.[email: [email protected]]

Childhood Copyright © 2004SAGE Publications. London, Thousand Oaks

and New Delhi, Vol 11(4): 449–468.www.sagepublications.com

10.1177/0907568204047106

This article reports on a reconstruction of some

major pragmatic presuppositions in recent Dutch

and English discussions in scientific media about

the say children should have in devising settlements

after parental divorce. Pragmatic presuppositions –

such views as discussants implicitly assume to be

taken for granted by their audience – were

interpreted as indicating implicit conventions with

respect to conceptions of childhood that underlie

explicit discussions. We concentrated on three

dimensions of such underlying conventions: the

child’s supposed interests in having a say,

supposedly required competences for having a say,

and the supposed links between and relative priority

of the child welfare perspective and the rights

perspective in this issue. Closer examination reveals

that not all of the presuppositions that appear to be

characteristic for the discussion at hand are self-

evident.


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statutes and Victorian children’s literature. These contextually variable con-structions of childhood contribute to the specific ‘ambiguity of childhood’,as Lee (1999) calls it.

Trying to avoid generalizing about differences between children andadults, for example by adapting to each individual child in its specific con-text, does not rule out the necessity of negotiating conceptions of childhood.Although deciding on how to proceed may seem easier in real situations, tojustify differential treatment one still has to refer – mostly tacitly – to moregeneral ideas, for example about what characteristics of the child and the sit-uation should be taken into account in this kind of context (see Archard,1993; Lee, 1999: 464ff.). The relative ease of decision-making in practicalsituations, then, results from taking (at least) some tacitly applied notions ofchildhood for granted. One simply expects them to be shared by the otherparticipants in the situation. However, the greater the distance to real situa-tions and the larger the group involved, the more likely it becomes that dif-ferences of opinion will arise about what qualities should be considered rele-vant, to what extent and in what context, in designating persons as ‘children’that are to be treated – at least in this respect – differently from adults. Suchdifferences of opinion were abundantly present in the discussions weanalysed about children’s rights in parental divorce. But even if conceptionsof childhood are explicitly under discussion, discussants still have to refer toshared ideas – knowledge as well as values – if only to be able to communi-cate.

In communication, any statement can only be intelligible and seemjustified against the background of other claims that are (presumed to be)shared by speaker and audience alike (see Wood and Kroger, 2000: 208ff.).Thus, overt differences of opinion still depend on shared ideas, at least onthe level of presuppositions. For example, a discussant who would underpinhis or her view that the judge – instead of the child itself – should decide onthe child’s residence after parental divorce by arguing that the judge can bestassess which parent will offer the better atmosphere for a balanced psycho-logical development, makes an implicit appeal to the presupposition that theaudience will consider future psychological stability to be a relevant andundisputed criterion in such decisions. A second discussant, who disagrees,and defends the child’s right to decide because that would prevent the childfrom developing psychological problems at a later age, implicitly appeals tothe same presupposition. Both discussants, although they disagree on theexplicit level, implicitly expect their audiences to take the criterion of futurepsychological welfare for granted, and they attune their argumentation tothat presupposition (among others).

In our analyses we were especially interested in these unspoken back-ground views discussants implicitly appealed to in scientific discussionsabout children’s rights to participate in the decision on arrangements afterparental divorce, e.g. with respect to residence or parental access. In other

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words, not the various and often contradictory opinions of the contributingauthors constituted our primary subject of research, but rather the implicitand supposedly shared views they appealed to, judged by the way they stat-ed and underpinned their overt views. In other words, we were interested inthe ‘presumed common ground’ – in the game board authors characteristic-ally imagined themselves to be playing on (Ginzburg, 1997: 413) – whichconsists of the views authors implicitly expected their readership to take forgranted.

We concentrated on three dimensions of these notions of childhoodthat are presumably taken for granted and that authors implicitly appealedto: (1) the kinds of competences that were presupposed to be relevant, (2)the kinds of interests that were presupposed to be relevant and (3) the kindof overall perspective that was presupposed to be of primary importance inthis issue. Our material included discussions with respect to the Dutch andthe English situations, as they were published in scientific media (see sectionbelow). Results are described in the third to sixth sections. And in the lastsection, we present some comments, which result in several suggestions forfuture practice.

The reconstruction of pragmatic presuppositions

MethodologyOur analysis was executed against the background of a discourse-theoreticalapproach. We were interested in the presumed common ground authorsimplicitly appeal to in order to make themselves understood by their reader-ship. Such presuppositions, being pragmatic presuppositions, primarily per-tain to the function of text as a communicative device. Such presuppositionsregulate the way authors or speakers take their (envisaged) audience intoaccount by attuning their formulations and arguments to the kind of viewsthey implicitly suppose this audience to endorse. Consequently, pragmaticpresuppositions reflect not so much the author’s hidden opinions, but rathersuch opinions as they expect from their readership (Stalnaker, 1998, 1999).As most teachers, for example, know, in order to make oneself clear to one’spupils teaching often involves attuning to their (supposed) knowledge andconvictions. Making an appeal to such presupposed pupil views does notimply that the teacher in question necessarily holds those views (Stalnaker,1999: 67). The concept of pragmatic presuppositions basically refers toprocesses of communication.

Reconstructing pragmatic presuppositions aims to make explicit the tacit estimation by authors (as well as speakers) of their intended audi-ence, to which they attune their argumentation. As Levinson (1983: 205)puts it: ‘An utterance A pragmatically presupposes a proposition B if Ais appropriate only if B is mutually known by participants.’ By reconstruct-ing pragmatic presuppositions, we want to gain an idea of the – always

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changing, never homogeneous – relatively consensual (sub)cultural levelthat can be hidden behind even the sharpest differences of opinion. Ofcourse, the presuppositional backgrounds of different positions on child par-ticipation in the context of parental divorce do not necessarily coincide.Different discussants can implicitly ascribe different views to their audiences– even if they envisage the same audience. However, the distribution ofpragmatic presuppositions might display regularities, giving evidence ofwhat discussants most characteristically presuppose to constitute the ‘com-mon ground’ of a specific discourse.

The overall method of reconstructing separate pragmatic presupposi-tions is based on the idea of a speaker attuning his utterances to the knowl-edge and convictions he implicitly expects his envisaged audience toendorse. The procedure, then, essentially follows two questions. First, whatunspoken insights are required to understand the line of reasoning of a dis-cussant as intelligible and relevant to the topic? Second, what – unspoken –ideas have to be accepted in order to be able to recognize an argument aspotentially convincing (see Levinson, 1983: 205; Stalnaker, 1998)? Aftercollecting the selected categories of presuppositions from all of the material(see following subsection), we reconstructed consensual patterns – the pre-dominant gameboard on which the arguments on our topic appeared to takeplace – by looking for frequently occurring, similar presuppositions.

The sampleAs pragmatic presuppositions pertain to the communicative function oftexts, our first criterion for demarcating our data sample specified a discus-sion context. We selected publications in which children’s rights to have asay about their own living conditions after parental divorce figured as a maintopic. Because of the constructive and context-dependent character ofnotions of childhood, other discussion contexts might reveal other pragmati-cally presupposed ideas on the nature of childhood. In comparison with anearlier project on presuppositions in discussions about medical decision-making, we actually found such context-dependent differences (seeDiscussion section).

Second, in order to isolate a group of texts that would – at least for-mally – address comparable audiences, we restricted our sample to publica-tions in academic media. Being ourselves – so to speak – part of the envis-aged readership would also prevent us from making interpretative errors dueto unusual or unfamiliar types or goals of dialogue (see Walton, 1996: 237).To find publications that met the criteria, we searched the main scientificcatalogues and data files (analogue as well as digital) that are accessible inthe Netherlands from universities and judicial and welfare institutions(Psychinfo, Eric, Data Juridica, Online Contents, Philosopher’s Index,Picarta, NIWI, NCC), and bibliographies of the publications found.

A third criterion for selecting publications concerns the countries that

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were included. Analyses were restricted to publications with respect to thesituation in the Netherlands and in England. Discussions on children’s rightsin case of parental divorce in both countries can be expected to be compara-ble in their reflection of modern western conceptions of childhood. In addi-tion, both countries have similar legislation on this topic, which alsoexplains a certain degree of interrelatedness of discussions on our topic inboth countries (for instance in van Nijnatten and Sevenhuijsen, 2001). Since1997, Dutch parents share custody of their children after divorce, as wasalready the case in England. Consequently, in many cases the court is notinvolved in making arrangements for the children. If parents cannot come toan agreement, and the matter is taken to court, children in both countrieshave the right to be heard.

Date of publication constituted the fourth and last criterion for demar-cation of the material. In both countries, discussions on children’s right tohave a say in case of parental divorce received a new impulse in the sameperiod. The Law Commission (1986) report on custody published in Englandprovoked new debates on the issue. In the Netherlands, a volume was pub-lished in 1988 (Rood-de Boer and Lubbers, 1988) – on the occasion of theretirement of Mrs Rood-de Boer, an influential advocate of children’s rights– to similar effect. In both cases, we included publications up to and includ-ing 2001. These four criteria resulted in 34 publications to be analysed,including 12 with respect to the Dutch, and 22 on to the English situation.All publications that met these four criteria were included in our sample; ref-erences to all of them are included in the list of references at the end of thisarticle.

Competence, interest, and perspectiveWe were especially interested in three specific dimensions of the hiddennotions of childhood in discussions about children’s rights in parentaldivorce. First, discussions on children’s rights in general are dominated bytwo issues: the question of what competences are required to be able to exer-cise a right, and the question what interests of the child are served by havingsuch rights (see Archard, 1993). We therefore concentrated on reconstructingpragmatic presuppositions with respect to these two issues, in order to findout what characteristic views on required competences and children’s inter-ests the authors implicitly ascribed to their audiences. Argumentations con-cerning the specific requirements children should meet, and their specificinterests with respect to having rights, can throw light on the question ofwhat authors presume their readership to take for granted in justifying differ-ential treatment of children, and in distinguishing childhood from adulthoodin the context of discussions about parental divorce.

A third aspect of the hidden notions of childhood we were interested inconcerns the specific type of discourse discussants presume to be engagedin. The typical ambiguity of childhood is also an effect of the multiplicity of


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institutional perspectives involved in decisions on how to treat children inspecific situations (Lee, 1999). In the case of children’s rights to have a sayin arrangements after parental divorce, two of the predominant perspectivesinvolved are the child welfare perspective and the judicial or rights perspec-tive. Both perspectives have to be balanced in issues like these. We wereinterested in any regularity in this balancing process. Approaching this bal-ancing process from a discourse-oriented point of view as well, we interpret-ed these institutionalized perspectives on children not in terms of organiza-tions, but as devices for communication. As explained in social systems the-ory (King, 1997; Luhmann, 1984, 2002), we took the rights and welfare per-spectives to be institutionalized ways of understanding and communicatingsocial issues. These perspectives are important to social organizations (likethe legal system and child welfare organizations), but they are not restrictedto, or determined by them. As institutionalized communication devices, suchperspectives are primarily considered instruments for enabling and organiz-ing communication in modern complex societies. Communication perspec-tives in general – including the rights and welfare perspectives – represent aset of institutionalized ‘frames of reference’ for use in social communication.By – mostly implicitly – fitting discussions in a specific frame of reference,discussions can cover a higher level of complexity without having to usemore words.

As these different institutionalized discursive frames of reference can-not be reduced either to each other or to a coordinating one, this differentiat-ed modern model of communication will also affect conceptions of child-hood (Luhmann, 2002). In our analysis, we were interested in pragmatic pre-suppositions about how to balance the rights and welfare perspectives withrespect to children and their say in case of parental divorce. In balancingconsiderations that result from the differentiated perspectives on children,authors will ultimately have to frame their line of reasoning within one finalperspective, in order to be able to communicate this reasoning – which doesnot mean they should neglect or even pay less attention to considerationsfrom other perspectives. It is very possible (we describe an example later) toargue in favour of granting more rights, while framing the argumentation ina welfare perspective. As this framing takes place as a communicationdevice, the chosen frame will reflect the perspective discussants expect theiraudience to consider the proper (not: exclusive) frame for the issue at stake.Do authors presume as a common ground that in the context of discussionsabout parental divorce children are to be seen primarily (again: not exclu-sively) as subjects of rights, a frame in which one should subsequently fittheir specific welfare and educational needs? Or do authors expect theiraudience to think the other way around?

Our research questions can now be summarized as follows. What pragmatic presuppositions with respect to required competences, child inter-ests and primary relevant discourse perspective characteristically underlie

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discussions in academic media on the topic of children’s rights to have a sayin matters concerning their own living conditions in case of parental divorcein England and in the Netherlands? Although we expected Dutch andEnglish discourse contexts to be highly comparable, we also looked at anypossible differences between the countries, which could be due to differentcircumstances, like the more recent legislation in the Netherlands, or the pre-sumably stronger anti-divorce lobby in England that Nicolai and Cuijvers(2001) report on.

Characteristic presuppositions with respect to children’sinterest in having a say

In a majority of Dutch (9) as well as English (14) argumentations, children’sinterests in having a say in divorce cases were explicitly related to their posi-tion in the family. Examples of this line of argument can be demonstrated inSawyer (1995), van Nijnatten and Kuipers (2001) and Freeman (1995).According to Sawyer (1995), in the context of the family one should avoidreducing the child to an object of care, and for that reason she considers itwrong to deny the child a say. Van Nijnatten and Kuipers (2001) argue thatthe child as a family member is capable of taking responsibility in case ofparental divorce. They underline children’s competence to independentlyform an opinion, in spite of their (financial, legal) dependency. In a similarway, Freeman (1995) argues in favour of allowing children a say. Accordingto him, this should be part of ‘normal’ procedures in any family if children’sliving conditions are at stake.

The explicit lines of reasoning of this group of authors are very simi-lar. Children are considered strongly dependent on parental care indeed, buttheir interests demand full recognition of their democratic position as familymembers. Granting them a say is considered a consequence of this democra-tic family membership. By presenting their views in this way, authorsimplicitly appeal to the presupposition that the readership will take for grant-ed the value of democratic family communication, in which children andadults participate alike. This presupposition clearly reflects what du Bois-Reymond (1996) calls ‘the model of the modern family’. As many discus-sants appeal to this presupposition, this family model represents a character-istic of the presumed common ground of the discussion about children’srights in parental divorce. The traditional – and elsewhere in society stillwidespread – model of the authority-based family does not figure as a pre-supposition in any of the contributions to discussions on children’s rights incase of parental divorce. Apparently, in this discussion context, authors prag-matically presuppose – i.e. implicitly expect their readership to endorse –that children do not differ fundamentally from adults in their role of familymember.

Many discussants (7 Dutch and 10 English) relate children’s interests


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in having a say to their developmental prospects, albeit in very differentways. Exemplary of this approach are argumentations in van Nijnatten andKuipers (2001), Singer (2001) and Smith (1997). Van Nijnatten and Kuipers(2001) point out the reduced risk of future problem behaviour that will resultfrom being allowed to fully participate in deliberations, because of theopportunities it provides for expressing emotions caused by parental divorce.Singer (2001) also considers participation rights beneficial to the affectivedevelopmental prospects of children. Smith (1997) takes the view that deny-ing participation will eventually damage the emotional and social develop-ment of children. In these cases, authors maintain that procedures withrespect to divorce arrangements should be organized in a way that benefitschildren’s social and emotional development. These lines of argument revealthe presupposition that considerations with respect to developmental out-comes – the question whether and how decisions will stimulate the child’sdevelopment – should be considered relevant with respect to children’srights, as well as the related presupposition that children are to be considered‘unfinished’ with respect to their social and emotional make-up. These casesdemonstrate an instrumental dimension of the presumed common groundwith respect to participation, whereas the aforementioned value of familydemocracy seems to represent an intrinsic value.

In a third type of reasoning, authors explicitly relate children’s interestin having a say to their legal position, as demonstrated in seven Dutch andfive English texts. For example, van der Linden and Vlaardingerbroek(1988) argue in favour of independent legal access for children who wantany changes in arrangements concerning parental access. According to theseauthors, autonomous access to court will improve children’s legal security,thus improving their weak position. This way of putting things evidences thepresupposition that readership will take it for granted that children – likeadults – can and sometimes even should be considered subjects investedwith rights. Why legal access would imply an ‘improvement’ of their posi-tion only becomes intelligible on the basis of this presupposition. None ofthe contributions reveals the presupposition that children should not be con-sidered as rights subjects. In this respect, authors expect their readership notto make a fundamental distinction between childhood and adulthood. Thecombination of this and the aforementioned presupposition with respect todevelopmental outcomes will obviously result in the dilemma of the child asa ‘being’ vs the child as a ‘becoming’ (Lee, 1999), of which we speak later.

Not only pleas in favour of granting rights reflect presuppositions withrespect to children’s interests. The same can apply to argumentations againstgranting rights. In a substantial number of cases (five Dutch and nineEnglish) restricting children’s rights is defended with a view to children’sinterests. In these argumentations authors mainly refer to responsibility forthe long-term future of the children involved. They condemn the notion ofchildren having to take decisions involving consequences for their future.

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For example, Cantwell and Scott (1995) defend the opinion that assigningparticipation rights in case of parental divorce would result in burdening thechild with important decisions on how they are best cared for. As far as thesedecisions concern the future, they feel children should be protected from thisresponsibility – like the decision to go to school is not up to them either.Gunning and de Roos (1992) also fear the pressure of responsibility thatresults from assigning rights. According to these authors, children shouldnever have final responsibility; they should be kept in a position that theyneed not blame themselves if things do not turn out well. Wortmann (2001)and Smith (1997) want to avoid this kind of responsibility as well, becauseof possible damage to the future well-being of the child. If the wishes of thechild might impede her or his optimal development and well-being in thelong term, one should act upon the opinion of adults, according to theseauthors.

With respect to children’s interests, these authors implicitly appeal tothe presupposition that the arrangement of children’s living conditionsshould be attuned to the long term, and decided on once and for all. An addi-tional presupposition relates to children’s inability to take responsibility forthat kind of decision. Although children are considered capable of express-ing their wishes, they cannot be trusted to have the long-term perspectiverequired for making the ‘right’ decision – this seems to be view authorsimplicitly expect their readership to endorse. This presupposition clearlyexcludes any suggestion from children themselves, as Smart et al. (2001b)report on. These children acknowledge the possibility of future regret, but intheir view this should not lead to adult attempts to prevent it, but to the pos-sibility of reconsidering the decision. One would have to address this pre-supposed necessity of taking once-and-for-all long-term decisions explicitlyin order to make room for a serious discussion about the suggestion made bythese children. However, many discussants in our sample clearly presupposethe once-only and permanent kind of decision. None of the contributionsdemonstrated the opposite presupposition.

To sum up, children’s development and welfare, as well as their legalstatus, are supposed to benefit from participation rights in parental divorce.As expected, this reflects the pragmatic presupposition that both a child wel-fare perspective and a rights perspective are to be considered relevant in thisissue. These perspectives do not necessarily conflict in all respects, asdemonstrated in argumentations that support rights because of their contribu-tion to emotional development. The ever-present potential conflict betweenboth ways of looking at children becomes apparent where discussants prag-matically presuppose the necessity of a long-term view that children arebelieved to lack. The solution to this dilemma – restricting children’s rights –illustrates this. This example also anticipates the second category of prag-matic presuppositions we were looking for: those concerning required competences for asserting rights.


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Characteristic presuppositions with respect to requiredcompetences

Pragmatic presuppositions about required competences are not only impliedin argumentations in favour of restricting participation rights, as demonstrat-ed in the preceding section. Authors who argue in favour of extending chil-dren’s rights to have a say in case of parental divorce also implicitly appealto what they expect their readership to consider required competences. Onthis topic, authors reason very similarly – and express rather similar prag-matic presuppositions. First of all, in most English (17) as well as Dutch(10) arguments, authors formulate the view that the – required – ability tojudge for oneself will develop with age. For example, Young (1992) advo-cates that children should be tested before being heard in court, and heexpects older children to pass this test more easily than younger ones. Ananalogous argumentation can be found in de Bruijn-Lückers and Van derLinden (2001). According to these authors, only at the age of 12 will chil-dren have acquired an understanding of the situation that is required to beable to participate in decision-making. These and similar lines of reasoningare proof of the pragmatic presupposition that required competences for hav-ing participation rights are principally developable competences. Because ofthis presupposition, it seems legitimate to postpone such rights as are grant-ed adults by definition.

With respect to the content of required competences, the arguments ofthe majority of authors are concurrent in that they stress the necessity ofbeing able to understand the situation as well as the reasons that gave rise tothe current decision procedure (Young, 1992). For example, the child shouldbe able to judge his or her own wishes also in the light of a wise decision ofthe court (de Bruijn-Lückers and Van der Linden, 2001; Young, 1992).Generally speaking, we find a strong emphasis on the competence of givingand understanding reasons as compared to understanding in an empathicsense, which is barely mentioned. Whenever authors actually relate chil-dren’s participation rights in case of parental divorce to required compe-tences, they invariably seem to presuppose as a common ground in theirreadership that assigning such rights should hinge on competences of a cog-nitive nature – while in the same breath giving evidence of the pragmaticpresupposition that required competences in the cognitive realm should beconsidered conditional competences for assigning rights, too.

Even if we look at contributions that pay explicit attention to the socialand emotional dimensions of decision-making, we still find that authors pre-sent their argumentations in such a way, that they implicitly appeal to thepresupposition that required and conditional competences should primarilybe of a cognitive nature. None of the authors appeal to the aforementionedpresupposed social and emotional ‘unfinishedness’ of children to substanti-ate their views with respect to required competences. To be sure, the role of

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emotions in decision-making regarding arrangements after parental divorceis not completely ignored by the authors. However, it is primarily related tothe developmental interests of the children involved, as demonstrated in theprevious section. In the context of required competences, the emotionaldimension only comes up as a presupposed object of understanding and rea-soning. For example, Young (1992) stresses that children should be able tohandle emotions in an understanding and rational way. De Bruijn-Lückersand Van der Linden (2001) formulate a similar argumentation with respect tosocial competences. According to them, the child should be able to under-stand the social situation as giving rise to the specific dilemmas at hand. Inboth cases, the authors make an implicit appeal to the presupposition that therole of social and emotional aspects should be subordinated to the primarilycognitive nature of required competences.

Some of the texts mention the moral dimension as well. For example,Singer (2001) refers to the loyalty problems children may struggle with insituations like this. Smart et al. (2001b) demonstrate in their research that theway even very young children try to organize contacts with both parents,shows a strong moral involvement. According to them, acknowledging chil-dren in their quality of moral persons should be an important aspect of theprocess of decision-making. However, with respect to required competencesfor asserting participation rights, the cognitive level of development remainsthe ultimately presupposed criterion. In this argumentation, children should(and are expected to) be able to make moral judgements in a rational way.Moral, emotional or social maturity does not appear to be part of the prag-matically presumed common ground of discussions on required competencesfor having a say. Required and conditional competences, then, are ultimatelypresupposed to be cognitive in nature; in addition, they should characteristi-cally be applied in a long-term perspective, as demonstrated earlier.

Predominance and interrelatedness of the child welfare andrights perspectives

In the previous sections the possibility of conflicting perspectives hasalready come to the surface. Although children’s status as subjects of rightsseemed self-evident, authors pragmatically presupposed deferral of rights tobe justified, especially because of – as yet – lacking competences such ascognitive abilities and long-term perspective. In this section, we investigatepresuppositions with respect to the rights and welfare perspectives. In partic-ular, we are interested in presuppositions concerning priority – with respectto framing the argumentation – and interrelatedness between those two per-spectives. The child welfare perspective especially represents the view of thechild as a ‘becoming’ (see Lee, 1999). According to Luhmann’s theory ofcommunication systems, this perspective developed into a relativelyautonomous communication perspective only in the last few centuries.


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‘Childhood’, or ‘biographical prospects’ as a separate functional perspectiveprovide contemporary western societies with an instrument to deal with theproblem that new generations can no longer integrate into society by meansof direct inclusion and participation (Luhmann, 2002). The child as a being –as included in ‘normal’ social systems – is represented in our analysis by therights perspective (although the context of other discussions, other commu-nication systems, such as the economic or the religious system, might alsobe relevant). This perspective is characterized by primarily understandingevents as instantiations of justice vs injustice (King, 1997; Luhmann, 1984).

Mutually relating rights and welfare perspectives constitutes a thirddimension of the pragmatically presumed common ground in discussionsabout children’s rights in divorce-related issues. It pertains to the questionhow and in what respect the view of children as human subjects, providedwith corresponding rights (the rights perspective), should be combined withthe view of children as humans-to-be, primarily in need of development andguidance (the child welfare perspective). As perspectives should be under-stood as instruments for communication (King, 1997) and presuppositionsrefer to convictions ascribed to the readership, the professional – judicial orwelfare – background of the authors themselves does not predeterminewhich of these presuppositions we will find in their texts, as the followingexample illustrates.

A recent television discussion in the Netherlands on the penalizing ofchild corporal punishment, in which both discussants were from socialwork-related professions, illustrates how representatives from similar profes-sional and disciplinary backgrounds can implicitly appeal to different pre-suppositions of their audience. The first discussant argued against penaliza-tion by drawing attention to the fact that this would turn many ‘normal’ edu-cational acts into criminal acts, which would hinder the educational process– thus framing his argumentation from the perspective of the child as pri-marily in need of guidance with a view to its future. The second discussantargued in favour of penalization, presupposing a rights perspective on theissue. Although she did recognize the possible developmental benefits insome circumstances of giving the child a physical signal, she underlined thatthe human right of physical integrity compels us to refrain from it and tolook for educationally effective alternatives. This discussant situated theissue primarily in a rights frame, and subsequently integrated welfare con-siderations.

Although nearly all of the analysed contributions to the discussioncontain considerations with respect to child welfare and considerations withrespect to judicial and human rights, authors rely on different presupposi-tions with respect to the final perspective in which to frame the argumenta-tion. We found publications that presupposed a view of children as subjectsof rights as the ultimate frame – that proceeded to position children’s devel-opmental and guidance needs within this presupposed frame – as well as

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publications that presupposed a view of children as subjects of care andguidance as the ultimate frame – that proceeded to position their (human)rights within the frame of their developmental and welfare needs. As presup-posing one final perspective does not imply ignoring the other one, we werealso interested in presuppositions about the way these perspectives should bemutually related.

Doek (1992), writing about children aged 12 and over, gives evidenceof the presupposition that the issue of children’s rights in case of parentaldivorce should primarily be approached from a rights perspective. Althoughhe recognizes the importance of continuous relationships with both parentsfor harmonious child development, he does not adduce this as an argumentto undermine the child’s autonomous right to codetermine parental accessarrangements. In Doek’s argumentation, the right to autonomously decidewhich social relations to maintain constitutes the frame within which devel-opmental needs should be met. According to the author this justifies the con-clusion that the reciprocity of right of access should prevail, even if a childdecided to abandon contact with one or both parents; possible developmentalharm resulting from such an approach should be combated in a way compat-ible with this rights frame. In other words, in the context of this discussionDoek presupposes a rights perspective as the perspective on children – atleast from 12 years on – that his readership takes for granted.

A similar priority of a rights perspective was found in five (out of 12)Dutch and in six (out of 22) English publications (despite the fact that juristsoutnumber welfare professionals). Therefore, Dutch authors subordinatedevelopmental and welfare needs comparatively more often to the rights per-spective than their co-discussants who refer to the English situation. Thisresult is consistent with our findings about the interests in participationrights that authors ascribed to children. Dutch authors were found to reasonmore often than their English colleagues from the presupposition thatrespecting autonomy rights is of vital importance, for children no less thanfor adults.

However, in a majority of the publications (seven Dutch and 16English) authors give evidence of the presupposition that children shouldprimarily be considered subjects of care and guidance. From this child wel-fare perspective, developmental prospects constitute the frame to which par-ticipation rights should be adapted. For example, with respect to childrenKing (1987) underlines the necessity of taking individual circumstances intoaccount, in as much detail as possible, in order to be able to make the rightdecision in any specific case. Against this background, he criticizes the LawCommission (1986) report on participation rights with respect to custodyarrangements. According to King, following the report would result in a‘reductionist’ view of children’s position in cases of parental divorce. Heconsidered the report strongly coloured by a judicial perspective – a perspec-tive he considers one-sided by definition – whereas in his view the welfare


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perspective could be comprehensive. Consequently, he implicitly presuppos-es the welfare perspective to constitute the frame for evaluating considera-tions concerning rights.

That presupposing a welfare perspective does not necessarily meangiving lower priority to children’s rights can be illustrated from Singer(2001). She wants to avoid decisions being taken by others instead of by thechildren themselves, and she underpins this view by arguing that childrenmight develop loyalty problems and feelings of powerlessness as a result.Although her argumentation comes down to a plea for the extension of chil-dren’s participation rights – even beyond the level that Doek (1992) recom-mends presupposing a rights perspective – Singer’s argumentation presup-poses the child welfare perspective as the primary frame to discuss the issue.

Presupposed common grounds in discussions with respect toEngland and the Netherlands

As expected, English and Dutch discussants reasoned from roughly similarpresumed common grounds. A substantial number of discussants appeal tothe presupposition of children as subjects of rights and subjects of care andguidance at the same time. Authors generally approached potential conflictsbetween both dimensions by implicitly referring to a model of rational, cog-nitively guided and long-term orientated decision-making, that they appar-ently expected their audience to take for granted. As children were presup-posed not to be able to meet the requirements of this model, lacking in thesecompetences was treated as grounds for deferring rights. In a similar way,authors characteristically referred to an implicit ideal model of democraticnegotiations within families. Children were presupposed to be unfinished,not only in cognitive respects, but also in social and emotional respects –although this in itself was not seen as grounds for deferring rights. In addi-tion, most discussants implicitly expected their audiences to frame this issueprimarily in a child welfare perspective and to incorporate rights considera-tions as secondary. This can be understood as an expression of the ratheradvanced, albeit intricately interwoven, development of the child welfareperspective as a functionally differentiated perspective in current societies(Luhmann, 2002).

Presumed common grounds with respect to the English situation donot differ fundamentally from those with respect to the Dutch situation. Weonly found a different emphasis in two respects. First, Dutch discussantsappeal more often to the presupposition of family democratic values, andsecond, Dutch discussants more often presuppose the importance of respect-ing individual autonomy rights, and they also more frequently presupposethe rights perspective as the primary one for framing discussions about chil-dren’s participation in parental divorce. As we did not investigate the back-grounds of these differences, we can only speculate. Both differences seem

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consistent with the idea that considerations concerning the child as a subjectof rights are given relatively greater weight in argumentations by Dutch dis-cussants. This greater emphasis on the child’s rights might be explained bythe fact that a considerable part of these authors (also) wrote in reaction tothe (intended) amendment of the Dutch law in 1998. This intended lawwould create a situation – as had already existed in England for some time –in which parents rather than the court should take initial responsibility fordeciding on arrangements for their children. As arrangements were no longerobligatorily brought to court, Dutch parents could now – like English parents– determine for themselves when and how to involve their children in theprocess. Some of the Dutch authors consider this a deterioration of the legalposition of children, because children from 12 years on had previouslyalways had the right to be heard in court, which could explain their greateremphasis on legal considerations and perspectives.

Discussion

Our theoretical and methodological approach does not allow for prescriptiverecommendations. The main contribution of making presupposed commongrounds explicit is to renew and stimulate discussions – which in turn givesevidence of our own pragmatic presupposition that a reflectively pursuedpublic discourse should be valued. However, at this point we want to addsome personal comments to the results of our analyses, thus actively engag-ing ourselves in the aforementioned discourse.

A few things in the way Dutch and English authors handle the ambigu-ity of childhood attracted our attention in particular. First, the emphasisplaced on democratic participation and on cognitive rationality clearlyreflects the western liberal culture in both countries (see Archard, 1993). Thecharacteristics of this culture are expressed in the ‘culture of negotiation’(Brinkgreve and De Regt, 1990) that characterizes ‘modern’ families.Considering children as fully participating members in democratic familieswas part of the typically presupposed common ground in this discussion. Ascompared to a previously conducted analysis of discussions about medicaldecision-making, this also illustrates the contextual variability of tacitnotions of childhood. Analysis of publications on children’s rights in decid-ing on medical treatment never revealed any sign of the presupposition thatchildren should be considered members of a family, let alone a democraticone. The presupposed cognitivist decision model, however, was similar (seeHemrica et al., 2001). This cognitivist model of ‘good’ decision-making, thatis so predominantly presupposed, deserves to be brought up for discussion insome respects. Especially in cases of parental divorce, decision-makingrequires not only cognitive, but also emotional and social competencies, assome of the authors point out (e.g. van Nijnatten and Kuipers, 2001).However, this insight has not become part of the implicitly presupposed


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model of ‘good’ decision-making, which remains cognitivist. Against thisdiscussion background, the possibility of letting oneself be guided by one’sfeelings seems out of the question and can hardly be brought up for discus-sion – notwithstanding the fact that this is not a completely uncommonapproach in other human relationships.

A second issue of note refers to the predominant way of treatingrequired competences for ‘good’ decision-making as preconditions for par-ticipation rights. This presupposition – required competences should be con-sidered conditional competences – falls outside the scope of our researchquestions, and was a side result of our investigations. In retrospect, itappears to play an important part. The presupposition that required compe-tences should be considered conditional competences excludes some poten-tially fruitful possibilities from public discourse. For example, insofar aslack of competences impedes the reconciliation of child welfare and rightsconsiderations, offering support to the child while the child asserts her or hisparticipation rights – thus compensating for lacking competences – insteadof denying or restricting those rights, could bring some relief as well. Thisapproach could be realized, irrespective of the characteristics of the underly-ing model of ‘good’ decision-making. This alternative could also be aresponse to the objections of Smart et al. (2001b) to the tendency not to rec-ognize children as (moral) ‘persons’.

Offering support to the child while the child asserts her or his rightswould require a view of the child as a separate individual – apart from her orhis parents. Such an approach seems rather unthinkable in the context of thediscussion as we found it. This could be explained from a conception of –also legally prescribed – parental authority that results from a historical andcultural development in which children have primarily been considered partof a family and in that respect their parents’ ‘property’ (see van Nijnatten,1995). Against this background, any right assigned to children simultaneous-ly implies an infringement on parental authority. Although parental authorityprotects children in many respects, the tendency to endow children only withderived identities can also be detrimental to their welfare. Especially in caseof parental divorce (and in other family-related problems such as childabuse), it might offer fruitful opportunities to recognize children as individu-als in their own right. This suggestion to reconsider the child’s status as anindividual should not be confused with a plea for the priority of a rights per-spective in questions like these. Recognizing children as individuals in theirown right could facilitate the reconciliation of different perspectives – in thepresent case the rights perspective and the child welfare perspective – irre-spective of the prioritized one. Generally speaking, this seems more consis-tent with children’s current ambiguous position in society, which relatesthem not only to the family, but also to a variety of other institutions.

A third issue with respect to our results concerns the presuppositionthat decisions should be conceived from a long-term perspective, and subse-

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quently remain in force once and for all, at least in principle. Considerationsconcerning the distant future appear to be considered part and parcel of anyacceptable decision in cases of parental divorce. However, what aspects ofthe child’s future should be considered exactly, and how they should berelated to the envisaged arrangements under discussion remain strikinglyvague. This strategy leaves considerable room for uncontrolled parentalinfluence, because it allows any proposal made by the child to be annulledby referring to presumed future damage. Although a child welfare perspec-tive may require the possibility of overruling children’s wishes – for exam-ple, children do not decide whether to go to school either – it is dubiouswhether this approach will always be productive in cases of parental divorce.In any case, it can be avoided without much damage by dropping the presup-position that any decision should be considered definitive. One might alsoconsider a procedure that would provide for the opportunity to reconsiderdecisions on a regular basis. With respect to developmental prospects andother long-term consequences, this approach could also help to steer clear ofthe problem of how to foresee long-term consequences with a minimum ofreliability (Elster, 1989).

In conclusion, in both the Dutch and the English contributions thechild welfare perspective appears to constitute the primary frame, althoughthe subject of discussion concerns a right, and despite the fact that many dis-cussants have a judicial background. This might reflect the view that a rightsperspective will necessarily result in a reductive approach (King and Piper,1995), whereas a welfare approach could offer more opportunities to beresponsive to the needs of each individual child. However, at the same time,authors do not want to deny the interest of the child to be recognized as asubject of rights. Against this background, considering the possibility ofoffering independent support to children as they assert their rights, as well ascreating opportunities for reconsidering decisions, could also contribute torespecting the child as a subject of rights while simultaneously recognizingher or his specific welfare interests.

Note

With many thanks to Maggie Oattes, translator, for correcting and improving our English.

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tacit notions of childhood

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