Research Articles (Public Law)

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Browsing Research Articles (Public Law) by Author "Fokala, Elvis"

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    Age or maturity? African children’s right to participate in medical decision-making processes
    (Pretoria University Law Press, 2020) Fokala, Elvis; Rudman, Annika
    This article advocates an approach to children’s participation in medical decision-making processes guided by the rationality of the best interests’ principle, a child’s evolving capacity and a child’s age. Using a human rights-based approach, rooted in the UN Convention on the Rights of the Child and the African Children’s Charter, it seeks to elucidate the contested three-way partnership between the child, its parent(s) and the assigned physician(s), which plays out in relation to most medical procedures involving children. In analysing legislation and case law, the article further aims to clarify the complex relationship between age and maturity in child participation; to facilitate a child’s involvement in the three-way partnership; and to suggest the statutory recognition of an age indicator in domestic African law in relation to medical procedures.
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    Calibrating children’s rights to participate in a family setting 30 years after the adoption of the convention on the rights of the child and the African Children’s Charter
    (University of Fort Hare, 2021) Fokala, Elvis
    Efforts to ensure compliance with Article 12 of the United Nations Convention on the Rights of the Child (CRC) and Articles 4(2) and 7 of the African Charter on the Rights and Welfare of the Child (Children’s Charter), permitting every child the right to participate in all matters affecting a child have reached boiling point in Africa. The reasons for this are plenty and range from the growing interests and development of children’s rights to the increasing visibility of relaxed parental influence. For children, the relaxation of parental influence and the need to accentuate their right to participate in a family setting is essential because decisions that are taken within their families often have an immediate and sometimes lasting impact on their lives. Thirty years after the adoption of the CRC and the Children’s Charter, this article aims to explore the existing cultured literature and models on child participation to propose a new way forward based on a child’s evolving capacity. The article further aims to shine the light on the recognition of a child’s right to participate in a family setting and suggest a model to enable better understanding and implementation of a child’s right to participate in a family setting in Africa. This article is inspired by the CRC Committee’s recognition of the family as one of the leading settings for promoting child participation.
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    The impact of the best interests and the respect for the views of the child principles in child custody cases
    (Brill Academic Publishers, 2019) Fokala, Elvis
    The best interests of the child and the respect for the views of the child are pillars designed and recognised in international children’s law as principles on which children’s rights in general evolve. Both principles operate across a wide range of issues relating to and related to children. A combination of both principles in an attempt to claim particular children’s rights is also possible and together accentuate the fact that children’s rights are interrelated and stronger when combined. This article attempts a combination of both principles in interpreting the intricacy and the impact both principles have had in aiding the court make decisions in favour of a child in child custody cases – the focus will be on the decisions in the Finnish case of Merkelback v. Illges-Merkelback and the Irish case of Nk v. Sk.