On August 29, three teenagers were arrested while attending what police deemed an unlawful assembly outside a Sham Shui Po police station. Following the arrest, a magistrate of the Juvenile Court of Kowloon City removed the teenagers from their parents—issuing a care and protection order under Section 34 of the Protection of Children and Juveniles Ordinance, requiring the teenagers be detained in a juvenile home.
One of the arrested teenagers, a 15-year-old boy, successfully applied for leave from detention, to apply for a judicial review to challenge the reasonableness of the Magistrate’s order. But the boy’s other request, for a writ of habeas corpus, which would have seen him released immediately, was rejected. The judge held that there was a lawful basis—making “inquiries about his well-being”—for his detention.
Was this decision really made for the child’s protection—or was it a politically motivated form of domination? Young people have played pivotal roles in Hong Kong’s long history of social movements, demonstrating mere youth precludes neither children’s agency nor their capacity for action. It was teen hunger strikers who overturned the 2012 “Moral and National Education” curriculum, and young protesters who launched the 2014 Umbrella Movement. This year, young people are again on the front lines—a teenager was shot and critically wounded by a police officer on Monday; meanwhile authorities have arrested protesters as young as 12 years old.
In the hands of Hong Kong’s legal system, child protection laws could become a regular tool for suppression and fear.
The liberal, paternalistic viewpoint argues children have inescapable vulnerabilities which can only be protected by adults. Yet when children are organizing together to challenge systems of violent oppression, the paternalism of child protection regimes takes on a far more sinister veneer.
While the teens detained in the juvenile homes have since been released—two of them after a time limit for their detention elapsed; the third released under curfew, pending judicial review—their arrests demonstrate the disquieting way young Hong Kongers’ age is being weaponized against them. Child protection’s regulatory power now bleeds into politics. Here, instead of remedying children’s vulnerability, it exacerbates it. The line blurs between “protecting” children and suppressing them.
A liberal state’s family law presents the state with a justification for limited intervention in the legal privacy of the family. The strongest case for a state’s child protectionist intervention is as a necessary response to prevent harm, including abuse and neglect. However, child protectionism also enables eugenicist logic by opening up the possibility for social engineering, via the selection of which children and families require “intervention.” Western states’ histories of systematic removal and oppression of Indigenous, First Nations and Aboriginal children in an attempt to “civilize” them serve as a chilling illustration of the evil possible under the guise of child protection.
Histories such as these are why Article 9 of the United Nations Convention on the Rights of the Child protects various rights children hold, such as the right against an unjustified removal, by the state, of a child from their parents. Hong Kong has been a signatory to the Convention since 1994. The Convention constitutes an important statement of the law relating to children’s rights. It is supposed to inform law and policy in the city, in addition to confirming the rights children in Hong Kong hold. But the promises of international law—which does not have the truly enforceable character that domestic legislation does—fall far short of instituting a reality where children’s rights are respected.
We must conceive of children as political actors, as rights-holders and as individuals in themselves.
Yet, without further interrogation of the inner workings of the family and private sphere, liberal opposition to child removal can also reinforce reactionary beliefs that a family should be a site of complete privacy, where parents have a total authority and control over a child. The notion of the privacy of the home and family is predicated on the applicability of rights only in the public sphere and, as feminist theorists like Catharine MacKinnon have noted, has historically acted as a smokescreen for the private oppression of women and children. The family, unfortunately, is not free of logics of subordination and domination.
This is not far off from the idea, peddled by Beijing and incisively interrogated by the sociologist Leta Hong Fincher, that the state is a parent in and of itself. The leader of such a family-state adopts a pater familias posture, presiding over the rest of the population in a top-down manner. Self-determination here is meaningless, because the father-ruler knows better than the citizens/women/children themselves. (This also explains Chinese media’s recent, misogynistic portrayals of Hong Kong as irrational wife or ungrateful child.)
To conceive of a non-paternalistic politics of child protection—one that would take a child’s well-being as the first priority—we must conceive of children as political actors, as rights-holders and as individuals in themselves. Under this framework, a child’s voice must be central to the determination of their best interests. The rights and interests of a child cannot be falsely subsumed into those of a larger community, whether that is a family or a state.
Children to the front
This framework reveals how Hong Kong’s child protectionist project has been abused for patently political purposes. Far from any genuine concern for children’s well-being, the court exercised its child protection jurisdiction to effectively negate the voices of child protestors. The court deliberately ignored the context of what it means to be a child in today’s politicized Hong Kong. The order betrays a paternalistic belief that children should not engage in protest, and that any such political behavior is misbehavior.
The legal and political subordination of children, like all other forms of social subordination, have never been inevitable.
In the hands of Hong Kong’s legal system, which increasingly disallows dissent, child protection laws could become a regular tool for suppression and fear. The critical point here is that the Magistrate’s order weaponizes the legal vulnerabilities of children qua children to punish them for protesting, thereby entrenching the use of law as a tool of subordination. But in reacting to these teenagers’ plight, the answer cannot be to simply double down on the liberal boundary between public and private. We must also scrutinize paternalism as an internal logic of individual families in the private sphere, in the way parents raise their children and the way we treat children in schools.
Young Hong Kongers already play a crucial role in politics and civil society. We need a new political imagination that would recognize and widen this participation. This would mean the inclusion of children in society in a substantive way, whether by allowing them to vote, protest, participate in legal proceedings, or otherwise participate in politics. It would also demand critical discussions about the family as a site of politics, and in particular an appraisal of children’s rights within the traditional nuclear family—while dismantling the smokescreen of privacy which has been so harmful to women, children, and other vulnerable people.
By resisting paternalism in all contexts, we can reveal that the legal and political subordination of children, like all other forms of social subordination, have never been inevitable. Instead, we must reimagine the politics of child protection in order to form an emancipatory politics for Hong Kong.