Juridification as a Threat to Human Rights Practice: Child Protection and the Democratic Governance of Discretion

In liberal democracies, greater juridification is not automatically a remedy for weaker protection of rights. In child protection, intensifying legal regulation can paradoxically erode the very conditions under which children’s rights are realised, because rights in this domain are not self-executing and must be tailored through situated, profession-dependent discretionary judgment. This paper argues that child protection exemplifies a distinctive democratic pathology: when uncertainty, public anxiety, and accountability pressures rise, governance often responds with more law, more proceduralisation, documentation, review standards, and court-like justificatory principles and templates. Yet these moves do not eliminate discretion; they recode it as an equaliser, as risk-avoidance and compliance-improvement, shifting attention from the child’s lived circumstances to defensible files, “tick-box” proportionality, and strategic reason-giving. The result is a service sector parasitic on a legalistic form of rights formalism. In this scenario, legality increases while rights-based outcomes may weaken, as the system’s practical intelligence, professional interpretation, relational work, and ethical judgment are crowded out by regulatory performativity. In the end leaving juridification with a deprofessionalizing effect. The core claim is that the legitimacy of coercive protective interventions depends less on escalating juridification and more on how democracies cultivate and govern the development and practice of professional discretion. A cosmopolitan floor of children’s rights requires institutional designs that enable professionals to act rights-responsively (and be held accountable for substance, not paperwork), rather than treating law as a substitute for professional practice. Using the right ot protection for children as hard cases, the paper proposes “cosmopolitan correctives” that strengthen rights without over-legalising practice. Rights-first constraints, non-discrimination, and reciprocity in reasons, paired with investment in professional standards, training, and deliberative accountability as the primary vehicle for tailoring decision-making affecting the child.