1. INTRODUCTION

Family law operates at the intersection of different visions of what constitutes a good society, who counts as a member of that society, and how the order of that society is constructed, in terms of class, gender and generation. To the extent that these visions compete, the courts have a traditional societal role of seeking to resolve conflict, or of producing authoritative declarations of what is to be taken to be fact or to be legitimate action, at least for immediately practical purposes. There is, however, a considerable difference between having a justiciable claim to the recognition of one’s ideal of the proper ordering of family relationships and having that claim heard. This applies particularly when the generational order is considered. Children may be ascribed rights, but these can only be enacted by the intervention of another party, which inevitably raises a principal/agent problem: does the party claiming on behalf of children have an interest of their own in the way the problem is framed, and the remedy claimed? The situation becomes particularly complex when multiple agents are competing to define the rights of a specific child, or of children in general: parents or carers, NGOs, health, social care or legal professionals, journalists or other cultural creators, academics from various disciplines, and political or policy actors.

These conflicts are often highly visible in relation to medical treatments, where a choice to act, or to refrain from acting, can be intensely polarising. A recent examination of conflicts between parents and medical professionals over the treatment of terminally ill children, for example, considered the challenges facing the English courts in determining how best to proceed. The contributors noted the media interest in such cases, and the involvement of national and international pressure groups via social media and other channels. There are, however, also missing voices. These children were too young to articulate views of their own, or raise questions of Gillick competence and an independent right to consent to medical interventions or non-interventions. The interests of the third parties who are actually funding the medical services are not discussed at all. Is there a wider societal interest in the decision to provide or withhold treatment that should also be considered?