By Harry Shier - 5 April 2023
Please note that this blog post was published previously on the “Ethical Research Involving Children” (ERIC) website. The content of the blog and the argument that excluding children’s participation in research is unethical, aligns closely with our ethical principles when doing children’s rights research. We are grateful to the ERIC team and the author, Harry Shier, for allowing us to repost this blog and we highly recommend having a look at the ERIC website which includes many more blogs and sources for children’s rights researchers. However, we would like to emphasise that this blog post is a personal reflection by the author. It does not reflect the views of the ERIC team, or of any research team or institution the author is or has been a part of.
Despite recent progress in broadening our understanding of ethics in research with children (much of it thanks to ERIC’s pioneering work in this area), the ethical approval procedures and practices in many higher education institutions continue to have the effect of silencing children’s voices. How have we arrived at a place where blocking children’s voices is seen by some as an ethical imperative?
The idea for this post came from a recent experience where a participatory research project I was involved in was disrupted, delayed and almost scuppered by the unavailability of young people to take part. We, the research team, believe this was not due to young people’s lack of interest in participating. Rather, we attribute it largely to the attitudes and actions of various adults in public service roles acting as intermediaries who, instead of facilitating connection as promised, created barriers between the researchers and the young people we wanted to hear.
We refer to these adult intermediaries as “gatekeepers”; a concept introduced to sociology by Kurt Lewin in 1947, and, for our purposes, defined by Burgess in 1984 as: “those individuals or organisations who have the power to grant or withhold access to people or situations for the purpose of research” (p. 39). In the case of our research, such gatekeeping led to the original research plan being abandoned, and the project re-launched in a new location, involving a huge waste of time and resources.
In reflecting critically on what had happened, we didn’t focus on the ethical aspects. The project had full ethical approval, and it was never hinted that anything the team had done, or not done, was ethically problematic. Instead, we focused on problems related to the methodology: Did we use the optimum methodology to build the necessary relationships with potential young participants in the face of obstructive gatekeeping? If not, what could/should we have done?
While this methodological aspect is the subject of a forthcoming paper, here we interrogate the incident through an ethics lens. In doing so, it soon became evident the gatekeeping situation signalled a rights violation. Specifically, we viewed it is a violation of the fundamental right guaranteed by Article 12 of the UN Convention on the Rights of the Child: The right of the child “who is capable of forming his or her own views … to express those views freely in all matters affecting the child”. It seemed to us, that when a legitimate researcher (with full ethical approval) affords a child the opportunity to express their views through the medium of voluntary and informed participation in a research process, and a third party, acting as gatekeeper, steps in to prevent the child availing of this offer, there is a clear violation of the child’s Article 12 right to express their views freely (emphasis added).
Research seminar - children as active citizens influencing policy. Photo by Harry Shier / Matagalpa
This is a specific example of a broad, pervasive and insidious category of children’s rights violations; the silencing of children’s voices by adults. However, as far as I can see, the silencing of children’s voices is rarely viewed as an unethical practice. Nor have I have come across any case where silencing children was seen as an ethical problem, or where an ethics committee insisted on measures to ensure children were heard. This is especially perplexing given the advances referred to above that have considerably shifted the case for not only involving children in research but for pursuing safe, ethical approaches to doing so. Why then, is giving children opportunities to express themselves through research participation still commonly perceived as problematic by research ethics committees, with restrictions imposed on researchers to limit how and when this can be done?
For me, these reflections raise more questions: Can a rights violation ever be ethical? Can “ethical” guidance for researchers that explicitly or implicitly sanctions the violation of children’s right to be heard ever be truly ethical? Should university ethics watchdogs be held accountable for ensuring respect for rights in research proposals?
Doing so would lead to a lot of existing “ethical” guidance being turned on its head.. Current guidelines that make statements like, “Alternative approaches should be sought to avoid involving vulnerable groups of children”, would have to be re-written to say the opposite: “Alternative approaches should be sought to prioritise the safe involvement of vulnerable groups of children, so as to ensure their right to be heard is respected”. This kind of scrutiny shines an important light on how a child-rights-based approach to research can co-exist with an ethics-based approach, and how they can be brought into harmony.
Research seminar - children as active citizens influencing policy. Photo by Harry Shier / Matagalpa
This leads me to reflect on my years in Nicaragua (2001-2012). I went to Nicaragua at the turn of the millennium as a child-rights activist and educator, with no intention of doing research or becoming an academic. Working in CESESMA,
with children’s rights as both an underpinning approach and an overarching paradigm, we had no need for ethics processes. This is because everything we did contributed to respect for, protection and fulfilment of children’s rights, and there was a shared understanding that we would always ‘do right’ by the children we worked with. We approached child protection in terms of the child’s right to be protected from harms, including violence, abuse, exploitation, mistreatment etc., and not as an ethical problem. Being deeply rooted in a rights perspective, it never occurred to us that silencing children’s voices could be seen as a way of protecting them; in fact, very much the opposite. Children were protected from harm and abuse by being supported in speaking out and being listened to. In CESESMA there was never a choice to be made between protection rights and participation rights; they were always inalienable and inseparable. Yet, it is this perceived tension that gives rise to ethics gatekeepers compromising rights under the mantle of ‘ethics’.
In a 2009 editorial in Children’s Geographies on the topic of rights and ethics I came across these reflections:
We do not deny that formal ethical processes have their place – indeed some kind of peer-governed setting and monitoring of ethical standards is vital if children’s rights to protection are to be met, including the stricture to social scientists as to medical researchers that they should ‘do no harm’. Yet all too often, … the medical model leads to over-formal rules, based in clinical research, which either do not fit, or miss altogether the ethical dilemmas thrown up by the real and messy world. (Beazley et al, 2009, p. 373)
That was 14 years ago. So how far have we come since then? In the editorial in the current issue of the International Journal of Children’s Rights (IJCR), Stalford and Lundy (2022) concur that having a robust ethical framework in place “sits comfortably with a children’s rights-based approach” (p.891). However, they go on to argue that…
We know that many researchers experience deep frustration when their work is constrained and, indeed, prevented by risk-averse ethics committees and decision-makers, particularly within Higher Education institutions. Applications to conduct participatory and/or peer research with children in distinctly ‘vulnerable’ situations – such as those in the criminal justice or care system – are commonly rejected on the presumption that their vulnerabilities are simply too grave to be accommodated within a research study … The result is, sadly, that many researchers shy away from even trying to conduct such research and, instead, pursue more conservative, remote or proxy methods that avoid direct engagement with children in certain circumstances. … That is not just a shame for the researchers concerned; it inhibits efforts to interrogate and understand the world of the most marginalised from their own perspectives and, in turn, to explore, identify and evaluate appropriate responses to their needs… Indeed, allowing research with children to only take place along narrowly prescribed lines may be, in and of itself, unethical. (Stalford and Lundy, 2022, pp 891-892).
I couldn’t agree more. It is also clear to me that respect for rights is central to the ERIC framework, and that the ERIC approach emphatically, “acknowledges the right of children and young people to have a say and to be heard, as afforded to them under the United Nations Convention on the Rights of the Child”. What concerns me here is that most researchers do not have the luxury of following the ERIC approach, but are obliged to follow the rules laid down by their own institution’s ethics committee, which, as seen above, leads to silencing children and thus violating their rights.
Research seminar - children as active citizens influencing policy. Photo by Harry Shier / Matagalpa
And while the ERIC Charter requires that “barriers to involvement based on discrimination are challenged” (emphasis added), it has nothing to say about the barriers to involvement based on obstructive or inappropriate gatekeeping – whether by community-based or university ethics watchdogs.
For myself, I have decided to leave academia. Though I will never say never, I sense my path is taking me back to international child rights activism in community and NGO settings.
When working out the right way to be with and work with children, I am satisfied to be guided by the UN Convention on the Rights of the Child, and, when it comes to engaging children in participatory activities, the UN Committee on the Rights of the Child’s “basic requirements which have to be reached for effective, ethical and meaningful implementation of article 12” (UN Committee on the Right of the Child, 2009, pp 29-31).
All processes in which a child or children are heard and participate, must be:
(a) Transparent and informative;
(g) Supported by training;
(h) Safe and sensitive to risk;
So, I think I finally have an answer to my question about the connection between rights and ethics. “Ethics” is the study of treating people right – both as a philosophical system and as a form of practical instruction derived from it. Human Rights are the universal codification of our entitlement to be treated right. The editorialists quoted above have it right: Formal ethical processes do have their place (Beazley el al, 2009); a robust ethical framework does sit comfortably with a children’s rights approach (Stalford & Lundy, 2022); and silencing children’s voices in research is neither right nor ethical.
By Bart Kleine Deters - 30 September 2021
Twice this millennium, world leaders have come together to pledge to erase global poverty and launch an agenda filled with measurable targets to monitor their progress. This is not so much special because of the pledge itself (world leaders tend to make all sorts of lofty pledges when they get together), but rather because they choose to monitor their progress. The Millennium Development Goals – and their successor the Sustainable Development Goals – break down the overall goals in several sub-goals, and attach multiple measurable targets to each of these. The SDG for education, for example, has as its target that by 2030 all boys and girls complete “free, equitable and quality primary and secondary education”, which is measured by the proportion of children in grades 2/3, at the end of primary, and at the end of lower secondary with at least a minimum proficiency in reading and mathematics. Having such goals allows us to track development progress, both over time and in comparison with other countries. It is bad press if you as an education minister manage to have fewer children in school than your predecessor, or in comparison with your (otherwise very comparable) neighbouring country. Having measurable goals thus increases accountability.
How to measure?
In my PhD research (A quantitative approach to the right to education: concept, measurement, and effects, 2021), I applied a similar reasoning to the human right to primary education. Compared to development goals, human rights have the added value of carrying greater moral weight, and of being legally enforceable obligations. Making human rights comparable should thus increase accountability even more! Measuring human rights is easier said than done, however. Do we check if the right is present in the law, or if the intended outcome of the right is achieved? And what about the process by which these outcomes are achieved? In the end I settled on measuring whether the right is present in the law, as codification is a sine qua non for rights protection.
This choice is only the first of many in the measurement process. The next question is about what exactly is understood by the right to primary education. We opt for the minimum core obligations, a set of seven elements that set the minimum floor of what should be the right to education. Other notable dilemma’s include what to do with progressive realisation, how to handle potential violations of the right, as well as the countless small choices you need to make when capturing complex legal language in a limited set of numbers. In the end we designed a right to education index, in which the seven elements are divided into 18 indicators. This index allows us to score a country’s education legislation on a scale from zero to seven, with a higher score denoting a better legal protection of the right to education (see figure).
What did we find?
Using this index, we scored 45 countries in sub-Sahara Africa and Latin America and the Caribbean for a period of 29 years. The good news is that the legal protection of the right to primary education has increased substantially over that period, and did so for all its elements. In 1990, for example, only 28 (of the 45) countries mandated compulsory primary education, compared to 41 in 2018. Only two countries (Ethiopia and Equatorial Guinea) had a worse score in 2018 than they had in 1990. Exhibiting a positive trend is not the same as fulfilling the right to education, however. Only two countries (Honduras and Cameroon) managed to completely fulfil their legal obligations vis-à-vis the right to primary education, and only towards the end of the study period. This is a concerning outcome, given that we are measuring the minimum core obligations, that are considered to be the absolute minimum floor of rights-protection. Going below that essentially means that there is no right to speak of. Keep in mind that I only measured the legislative part of the right, and it is difficult to see how states can meaningfully protect these rights in practice if they cannot even manage to legislate their absolute minimum sufficiently.
This relationship between the right as law and the right as outcome was the final part of my dissertation. We empirically tested if changes in the legal status of the right had an effect on the percentage of children enrolled in primary education, as well as the percentage of children completing said education. We found a delayed effect, where both outcomes improved significantly about seven to nine years after the legal change. Governments committed to improving the right to education are thus in it for the long haul, with progress likely only becoming visible after their tenure is already over.
When you take a helicopter view of the research, there is reason for optimism, but there is also reason for caution. It is positive that the legal protection has improved over the last thirty years, but it is worrying that almost no country has fully legislated the minimum core obligations. On the other hand, meaningful improvement in outcomes is possible as a result of (relatively) small changes in the legal framework. This does take long-term commitment, however. The dataset created by this research allows us to monitor the legal progress, and correlate it with right outcomes. It is thus a useful tool in the continuous effort to hold governments accountable for their promises to improve the wellbeing of their people.
 Committee on Economic, Social, and Cultural Rights, 1999, General Comments 11 and 13.
 Argentina, Barbados, Benin, Botswana, Burkina Faso, Cabo Verde, Cameroon, Central African Republic, Colombia, the Comoros, Costa Rica, Côte d’Ivoire, Cuba, Ecuador, Equatorial Guinea, Eritrea, Eswatini, Ethiopia, Gabon, Ghana, Guinea, Guyana, Honduras, Jamaica, Kenya, Lesotho, Madagascar, Mauritius, Mexico, Mozambique, Namibia, Nicaragua, Niger, Panama, Paraguay, Peru, the Seychelles, Saint Lucia, Saint Vincent and the Grenadines, São Tomé et Principé, South Africa, Togo, Trinidad and Tobago, Uruguay, and Zambia.
 Alston, P. (1987). Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights. Human Rights Quarterly, 9, 332
By Marieke Hopman - 21 September 2021
What is law?
A very theoretical part of our current research project on the child’s right to development in unrecognised states, is the study of “norm pluralism” (see also this blog). The idea is that to understand why not all children’s rights are protected in practice, we need to understand the different norms according to which people behave. In other words: we want to understand which ideas about good and bad behavior make people behave the way they do. For example, why do some parents hit their children? Do they think this is a good way of educating them, or do they think it is not good but they simply loose control when overcome with emotion? There are many different types of norms (ideas about good and behavior), and one subcategory is “legal norms”, or “laws”. A law may be a reason why you do or don’t do something. For example, you may not hit your child because you think it is against the law.
To determine what law is in a certain societal context is not always easy. In a Western country like the Netherlands for example, you may think it’s pretty straightforward: you study what is written in lawbooks. But what about things that are said in a courtroom, the interpretation of laws? Is that included? The issue gets even more complicated in societies where there are different legal systems, for example where there is national law, religious (e.g. Shari’a) law and where different tribes also have their own laws (see for example this blog for an example of how this works in the Sahrawi refugee camps).
In the past, many scholars have debated what law is exactly and how you can study it. Recently, I published a journal article about the debate on this subject between two great legal scholars: Hans Kelsen and Eugen Ehrlich. You can read the complete article here. In this blog I will give a short summary.
Ehrlich’s definition of law
Eugen Ehrlich was a jurist and an academic teacher in law. What he saw around him in the law schools of early 20th century, of his students and colleagues, was that their education and research were aimed at what he thought was only a part of the legal field. Law students, according to Ehrlich, studied only state law. But according to Ehrlich there are many more kinds of law in society than only state law!
His theory is as follows. Human beings live together in social groups, or “associations”. In most cases they regulate their behaviour within the group according to certain rules. Of these rules, there are legal rules and non-legal rules. Non legal rules are non-normative rules (language, rules of hygiene) and non-legal normative rules (ethical custom, tact, etiquette). Legal rules are “a certain kind of normative rule of human conduct, that human beings within human associations (in relation to one another) recognize as binding and that generally regulates their conduct.” The state is only one of these associations, but not the only one. Others might for example be the family, the tribe, a corporation.
Therefore, someone who studies law should study the total legal field: all law that we can find in society. This study should be done through a sociological method, by studying society through observation and/or experience. This means that legal scientists should study law of different associations, both written and non-written law, state and non-state law.
Kelsen vs. Ehrlich
In 1915, a young legal scholar named Hans Kelsen published a lengthy critique of Ehrlich’s book. Although Kelsen at the time was a junior researcher in relation to Ehrlich, both in position and in age, his critique is quite ruthless. Kelsen accuses Ehrlich of having written a book without structure, of messing around with his most fundamental conceptions, and of failing to provide a foundation for the sociology of law. His critique is reluctantly answered by Ehrlich in the same journal, resulting in a back-and-forth debate between the two.
In short, Kelsen argues that there are two types of law:
Because of this distinction, it is not possible to study law in society as Ehrlich proposes, because if we study what we observe in society this is the study of something that “is” and not something that should happen (“ought”). So what Ehrlich proposes to study are not proper legal laws.
Other points of critique are that Ehrlich does not present a clear definition of law, that he doesn’t distinguish clearly between legal rules and other social rules, and that he distinguishes between the law and the state (this according to Kelsen is not possible).
Ehrlich reluctantly replies to Kelsen’s critique. In general, Ehrlich feels that throughout his critique, Kelsen imposes his own terminology and then proceeds to qualify that what Ehrlich writes as nonsense. He writes:
“Did anyone ever hear of such a critique? Kelsen confronts my statements with his own, arbitrary – incidentally, scientifically completely worthless (the legal proposition as “stipulated consideration”!) – terminology, and then he claims, that [my statements] are meaningless, because they do not fit his terminology.”
He also disagrees with the is/ought argument, arguing that in his whole book he has only considered laws as ought-rules and never as is-rules of nature. Laws, that are ideas in the minds of people, are in fact perceptible and observable. According to Ehrlich, this should also be the object of legal science.
To summarise, Ehrlich and Kelsen think that they are on opposite sides regarding their answer to the question “what is law?”. Ehrlich on the one hand believes that law can be found through the study of society by observation, conversation and/or experience, while Kelsen believes that law can be found by studying what is written in (state) legal codes.
Kelsen’s definition of law
Kelsen has written several books about the question “what is law?”. According to Kelsen, legal laws are external rules that tell someone how they should behave. These rules are laws if three criteria are met:
According to Kelsen, there are two ways to study the law: either through psychology and sociology, when you study how laws affect the behaviour of people (do they follow the rules or not, and why?), or how jurists study law: studying a system of laws as found in lawbooks, irrespective of how people behave.
I personally believe that if we combine the theories of the two bickering professors, their theories can be reconciled. In fact, I think that to truly understand law, both theories need each other. By combining them, we end up with a more comprehensive framework for the study of law and society.
In short, there are two main gaps in their respective theories, that could be remedied by inserting elements of the other’s theory: Ehrlich’s work lacks clear definitions of concepts such as law, a legal order, a legal proposition, etc. These conceptual definitions can be provided by Kelsen: they are the three criteria for law mentioned above. Kelsen on the other hand needs to also study law through observation and/or experience. How else can you determine whether people believe a certain rule is created by someone who is authorized to create laws? How else can you know if people generally follow the rules that are created by the legislator? In other words: how else do you know what law is?
Therefore, Kelsen’s idea of the basic norm should not be considered “scientifically completely worthless” (as Ehrlich argued), and Kelsen would have to admit that to identify law, legal science will need to have, as Ehrlich argues, “a feeling with reality”. If we combine both theories, science of law can – as Ehrlich argued it should - study the total legal field, all law that we can find in society.