Peer-reviewed article
Welfare paternalism and the paradox of protection: towards a rights-based framework to mediate the deprivation of liberty of children.
Ó Néill C ·
Summary
Written by AI, not yet AICS's view ·Key points
Limitations
Abstract
This article examines the acute ambiguity in the law governing the deprivation of liberty of children in England and Wales, where protective interventions often rely on judicial direction and on unclear statutory safeguards. It is argued that the current framework is reactive, welfare-driven, and lacking in procedural coherence. Drawing upon Fineman's theory of vulnerability, Fraser's parity of participation, and Lundy's analysis of children's agency in relation to the participatory guarantees of Article 12 of the United Nations Convention on the Rights of the Child, the article reconceptualizes vulnerability and rejects the paternalistic protection ethos of the status quo. The article exposes structural gaps in the light of a shifting legal landscape. This backdrop includes the Supreme Court's recent 2026 move away from the rigid, single-determinant tests for confinement towards contextual, multifactorial assessments. It proposes an original statutory architecture: the Children's Liberty Protection Framework (CLPF) that establishes statutory mechanisms of advocacy, review, and oversight at Tribunal level. The CLPF transforms vulnerability from being a control-based condition into a procedural right to participate. As such, it offers a coherent legal pathway for reconciling the challenges posed by the right to liberty and the need to protect children within a supportive and responsive state.