Philosophy of Childhood and Its Implications for the Age of Consent

Abstract

The philosophy of childhood which deals with issues related to conception about childhood, children’s rights, and moral status, etc., is important for clarifying attitudes towards the children in care provision and ethical and legal conundrums related to child and adolescent mental health. This is highlighted through the implications of philosophy of childhood on the age of consent, in particular, in reference to medical and sexual consent.

Introduction

The Encyclopedia Britannica defines Philosophy (from Greek word philosophia meaning “love of wisdom”) as the rational, abstract, and methodical consideration of reality as a whole or of fundamental dimensions of human existence and experience. ¹ The philosophy of childhood takes up philosophically interesting questions about childhood, such as changing conceptions about childhood and thus the attitudes toward children, children’s rights and autonomy, the goods of childhood, etc. ² The philosophy of medicine is a branch of philosophy that explores issues in theory, research, and practice within the field of health sciences—specifically in topics of epistemology, metaphysics, and medical ethics. ³ The philosophy of childhood has obvious implications for child and adolescent mental health, eg, regarding their moral and legal status.

Philosophy of Childhood

The conceptions of childhood differ based on cultures and within a culture, historically. ⁴ The dominant view is that children are “little adults.” In relation to development, Aristotle had talked about final and formal cause of organisms. According to him, the final cause of organism is the function that the organism normally performs when it reaches maturity. The formal cause of organism is the form or structure that organism normally has at maturity, which enables it to perform its functions well. A human child is thus viewed as an immature specimen that has the potentiality to develop into a mature specimen with the structure, form, and function of a normal or standard adult. ² This view impacts adults’ approach towards children. They tend to value the developmental aspect of childhood over being a child; and focus on their obligation to provide the supportive environment needed by children to develop into normal adults over children’s views and interests in the here and now.

Classical Indian philosophy also emphasizes the developmental aspect of childhood, perhaps with a greater emphasis on moral development. Sitholey et al state that Manusmriti details the “sanskars” (rituals at various stages of life) that need to be conducted to instill good qualities in a child and remove bad habits. ⁵ Going to guru or acharya and getting education of Vedas was considered so important that a human was considered born a second time (dwij) after it. In gurukuls, students were taught how to behave and use proper manners and advised to acquire positive qualities like truthfulness and cleanliness and give up bad habits like aggression, jealousy, vindictiveness, greed, or laziness. There is very little mention of childlikeness. Things are of course different with the Indian epics, particularly in relation to Krishna’s antics, which celebrate childhood.

Stage theories that posited that development takes places in age-related stages of clearly identifiable structural change, like those of Piaget which talked about structural change in cognitive development were an advance in the conception of childhood, as they obliterated the dichotomy child/adult—immature/mature and led to the recognition of growing capacities within childhood itself. ⁶ However, Matthews has criticized Piagetian-type stage theories as supporting a deficit conception of childhood, ie, the child is essentially understood as a configuration of normal adults’ missing capacities.^{7, 8} Such a conception ignores or undervalues the capacities of children, eg, their felicity in learning new languages, artistic creativity, and curiosity, that seem to recede with transition to adulthood. It is felt that such theories take attention away from the “goods of childhood” and encourage a restrictive focus on development.

Recent philosophical work stresses that a good childhood has intrinsic value and should not be appreciated merely for its instrumental (development into adult) value. ⁹ Goods specific to childhood may include opportunities for joyful and unstructured play and social interactions; freedom from responsibility and time constraints; and innocence. Play can be of considerable value not only as a means for children to acquire skills and capacities they will need as adults, but also in itself (eg, the glee and abandon as also joyous companionship). Beyond developmental milestones, adult life is impacted by what happens during childhood, eg, the experiences and successes/failures during childhood may embellish or scar us for life. ¹⁰ Contrarily, some features of childhood make childhood bad for children. ¹¹ Childhood dependency and need of control may leave children vulnerable to abuse or neglect at the hands of their intimate caregivers. Their lack of a fixed practical identity (eg, stability of choice) constrains provision of full autonomy to children.

Another criticism of Aristotelian conceptions of childhood is that it focused on normative aspects of development and is thus inadequate to deal with philosophical issues related to childhood disabilities. ¹²

Theories of Cognitive and Moral Development

One philosophical debate on cognitive development has centered around innatism vs empiricism. René Descartes, a proponent of innatism, suggested that a clear and distinct knowledge of the world can be constructed from resources innate to the human mind. On the other hand, John Locke, a proponent of empiricism, believed that human mind begins as a “tabula rasa” (clean slate); and that the materials of reason and knowledge come from experience. ² Empiricism feeds into deficit concepts of childhood, while innatism supports intrinsic abilities and potentialities of children. ¹³ In psychology, behaviorism takes a largely empiricist position. Based on his work that led to the concept of universal grammar, Chomsky has criticized the behaviorist position, stating that language and cognitive development are supported by innate structures. Neurosciences attest to the complexity of the structure and functions of young brains. Such findings have led Gopnik to state that children and adults are different forms of homo sapiens… with somewhat different brain structures and functions, which are designed to serve different evolutionary functions. ¹⁴

The dominant view of development of morality is that it happens in stages. Rousseau’s stage theory of moral maturity suggested that moral reasoning is not appreciated until the age of ideas (13 years and older). ² Similarly, Kohlberg posited 3 levels and 6 stages of moral development: Level A. Premoral (Stage 1—punishment and obedience orientation, Stage 2—naive instrumental hedonism); Level B. Morality of conventional role conformity (Stage 3—approval by others, Stage 4—authority-maintaining morality); Level C. Morality of accepted moral principles (Stage 5—morality of contract [eg, individual rights, democratically accepted law], Stage 6—Morality of individual principles of conscience). ¹⁵ Critics of 1-dimensional stage theories, like Gilligan, point out that moral feelings are as important as cognitions in the development of moral life. She believes that Kohlberg’s rule- oriented (justice) conception of morality is associated with male thinking, whereas women are more likely to approach moral dilemmas with a “care” orientation. ¹⁶ Development of rule and care orientation may not be contemporaneous. Hoffman pointed out that development of empathetic feelings and responses occurs quite early in life, raising the possibility of genuine moral feelings, and so of genuine moral agency, in very small children. ¹⁷

Moral Status of Children

Paradigmatic humans have moral status, ie, they are believed to be capable of moral thought and action. ¹⁸ Paradigmatic humans would thus be adults with cognitive capacities for self-control, self-criticism, self-direction, and rational thought. Taking these grounds for assigning moral status has resulted in children not having moral status in most societies.

The yardsticks for assigning moral status are now contested. Some philosophers recognize children as having moral status because of their potential to become paradigmatic humans. ¹⁹ These children may be termed paradigmatic children. However, taking this view leaves open the questions about the moral status of children who are not expected to live to adulthood (eg, should children with terminal illness be granted some autonomy), or children whose intellectual disabilities compromise their ability to acquire the capacities of paradigmatic adults. Approaches that grant moral status to nonparadigmatic children (and other nonparadigmatic humans) include, (a) species membership (all human children have moral status simply because they are human), ²⁰ (b) children’s capacity to fare well or badly, either on utilitarian or experiential grounds, ²¹ (c) the interest that others with moral status take in them, ²² and (d) children’s capability for active participation in morally valuable caring relationships with others. ²³

Childhood Agency and Autonomy

Children are capable of goal-directed behavior; hence they are believed to have agency at least in the minimal sense. ² The exercise of childhood agency is constrained by social and political factors, including various dependency relations (eg, family). However, respect for children’s agency is provided in many legal and medical contexts, where children capable of expressing preferences are consulted when decisions regarding them are taken (even if their views are not regarded as decisive); eg, in child-custody cases, children’s preferences are given due consideration, and decisions are not based only on the best interest considerations. ² In medical situations also children capable of expressing preferences are encouraged to do so, to the extent that children with terminal illnesses are beginning to play a key role in deciding their own future. ²⁴ While there is agreement that children’s capacity to eventually become autonomous is morally important; and hence, this capacity should be nurtured; ²⁵ there is skepticism about the capacity for autonomy in children under 10 years of age. It is believed that they lack information, experience, and cognitive maturity; do not to care stably about things; and have limited ability for critical reflection. ²⁶

When a person acts autonomously, s/he embraces the goal of the action. Mullin has proposed that children’s capacity for autonomy should be seen as capacity for autonomous self-governance in the service of “what the person cares about” (e.g., principles, relationships, activities, and things). ²⁷ Autonomy in this sense requires capacities for impulse control, caring stably about some things, connecting one’s goals to one’s actions, and confidence that one can achieve at least some of one’s goals by directing one’s actions. It does not require extensive ability to engage in critical self- reflection or substantive independence. Autonomy in this sense can be supported by children’s attachment figures and thus could be visualized as a form of relational autonomy. Children’s autonomy is supported when adults give them relevant information, reasons for why they have made their requests, demonstrate interest in children’s feelings and perspectives, and offer children structured choices that reflect those thoughts and feelings. Children’s autonomy could be supported in specific domains of action and not at other times and in other domains of action, eg, when children are ill- informed, do not appreciate the long-term consequences of their actions, cannot direct their actions to accord with their best interests, or are at risk of significant harm. ²

The Age of Consent

Children below a certain age are thought not to be capable of consent as they lack the relevant cognitive and volitional capacity. ²⁸ It is believed that they cannot fully understand and appreciate what consent means and of what they might be consenting to. Also, it is believed that they do not possess and are not capable of exercising sufficient independence of will. Age of consent is intended to serve as a reliable indicator of adequately developed cognitive and volitional capacities required for taking considered decisions. ²⁸

Box 1. Gillick Competence.

The United Nations Convention on Children’s Rights (UNCRC; 1989) requires that national laws should be developed “in a manner [that is] consistent with the evolving capacities of the child.”

In United Kingdom, children have been given the right to consent to medical examination and treatment based on the Gillick v West Norfolk and Wisbech Area Health Authority [1986] case, where a mother of girls under 16 objected to Department of Health advice that allowed doctors to give contraceptive advice and treatment to children without parental consent. The judgement held that a child under 16 had the legal competence to consent to medical examination and treatment if they had sufficient maturity and intelligence to understand the nature and implications of that treatment.

Though India does not have a specific law or policy in this regard, a reflection can be seen in the recommendations of High Courts of Madras and Karnataka that the age of sexual consent be reduced from the current 18 years under the Protection of Children from Sexual Offences Act 2012.

However, competence could be understood as relative to that in respect of which consent is being given. Decisions may differ in terms of complexity (eg, a decision allowing for multiple options with different degrees of difficulty in understanding the options) or significance (eg, seriousness of consequences of the decision, having to balance contrasting consequences), so the age of consent could be set at different points depending upon what is being consented to. ²⁹ The Gillick principle (applied in certain countries) allows individuals (below the age of legal consent) on appropriate occasions the opportunity to show that they are competent (Box 1). ³⁰ These kinds of provisions are particularly needed because the usual methods for approximating child’s potential consent such as the principle of best interest or proxy consenters work well in some cases (eg, consenting to medical procedures, child protection), but are irrelevant in other situations (eg, sexual activity). ³¹

Sexual Consent

Mutual consent is considered essential for the moral permissibility of sexual interactions in liberal societies. ³² Unconsented sex is considered a crime in many jurisdictions. However, a child’s sexual consent “does not count” even if it is reasonably judged that the minor acted willingly and in full knowledge of what s/he was doing. Thus, sex with a minor is normally considered to be a criminal offense (statutory rape). ³²

Often a distinction is drawn between an age below which consent absolutely does not count because the child is considered incapable of consent, and a higher age (eg, 16 years) after which consent for sex can count or may draw less judicial stricture. ³² Usually, the age for sexual consent is set lower than the age for consent for marriage. On the other hand, in many countries, the age at which minors might receive treatment and medical advice regarding sexual activity (eg, on contraception or STD) might be below the age of sexual consent to protect minors who may engage in sex because of lack of awareness of the judicial requirements. ³²

The nonrecognition of minor’s competence for sexual consent can potentially lead to a contradictory situation, wherein if two minors engage in mutually consensual sex, they might both be held guilty of rape. Most jurisdictions attach no or a significantly reduced penalty to sex between minors who have clearly engaged in it willingly. However, age differential is regarded as relevant to the characterization of and severity of punishment for willing sex between minors, as the substantially older minor may have greater power and control over the younger minor. There is thus an asymmetry between the way ages are fixed, respectively, for consent and for responsibility. Below a certain age, a child cannot consent to sex but can be held responsible for having sex with another minor as the younger minor’s consent is considered invalid. ³³

Medical Consent

Parents, as the adults responsible for the care of their children, usually give their proxy consent for medical treatment. ³⁴ However, even where children’s consent does not count, their preferences and expressed wishes can be given weight in accordance with their maturity because it provides “consultative evidence” of what children think is in their best interest, ³⁵ and because children have a fundamental entitlement to have their wishes heard. ³⁶ Those below the age of consent may thus express their assent to, or dissent from, a proposed medical treatment. Assenting children are happier, more cooperative, and have better outcomes. ³⁷

Power of proxy consent is usually limited by the state only to protect the “best interest” of the child in unusual cases (eg, a persistently abusive parent). However, some countries apply Gillick competence as a test of a minor’s maturity, wherein those below the age of consent might be judged competent to make their own decisions if they demonstrate adequate knowledge and appreciation of their situation and sufficient independence of will to act on their decisions. Gillick competence does not provide a carte blanche to the emancipated minors to take all medical decisions about themselves. An asymmetry has been noted between a child’s capacity to consent to treatment and one to refuse treatment. ³⁸ Courts tend to find the child, Gillick-competent, when the child accepts treatment without the knowledge of parents, eg, medical termination of unwanted pregnancy. On the other hand, courts often don’t accept children as competent when they refuse treatment, because such decisions are believed to conflict with the child’s best interest (eg, a potentially life-ending or life-limiting decision in a terminally ill child).

Conclusions

It is evident that discussions around the philosophy of childhood are pertinent to many vexing questions that the field of child and adolescent mental health deals with. For example, what are the appropriate limits of parental authority over children; when is it appropriate for parents to consent to children’s participation in medical research or refuse medical treatment of their children, or the moral permissibility of parents devoting substantial resources to advance the life prospects of their children. Answer to such questions have important implications for the study of children in human sciences and for children’s status in care provision.