A country can be judged by countless measures, but for many people the most significant are its treatment of children under eighteen years of age and the legal protection that society affords them. Most people profess to love children: Is this merely an abstraction, or are political and social environments truly child-centered? Are children accorded the rights, dignity, and benefits worthy of their status as citizens and human beings, or does their legal incapacity result in their needless subjection to abuse, exploitation, and other dangers? Does society permit, to the detriment of children, the unrestricted exercise of parental prerogative and the neglect of elected officials who realize that "children don't vote"?
These questions have increasingly been the focus of debate around the world. The children's rights movement, begun in the early part of the last century, has been an effort by government organizations, advocacy groups, academics, lawyers, lawmakers, and judges to construct a system of laws and policies that enhance and protect the lives of children.
For some the cause of children's rights has wrongfully been viewed as simply a war of youth liberation or overcoming adult oppression of young people. However, freedom from parental authority, control, and discipline has never been a major theme of serious children's rights advocates. Most groups have focused on child victims of abuse and neglect and how government agencies can better protect them. The most active advocates for children are not engaged in a drive to secure children's independence from adult supervision, but rather are addressing such issues as improving a country's system of enforcing child support obligations, preventing child sexual exploitation, and helping assure that children receive adequate education and health care.
Historical Roots of the Children's Rights Movement
The assumption that children either could or should have rights of any type is a relatively new idea. For most of history children were largely consigned to the status of parental property or chattel (primarily the father's chattel). Absolute parental control of the child, unfettered by the state, was in part a reflection of the agrarian society and the family itself as a work unit. Even where a child became orphaned or was so severely mistreated by parents or guardians that courts sentenced the abusers to prison, the child would often be indentured into the service of a new parent-master. This concept of children having an economic value was often matched with even sterner religious views, in which children were seen as inherently evil and needing a strict, punitive upbringing.
This view of children began to change in the West due to a variety of reasons. First, a more child-centered concept of human rights and family life began to emerge from the European Renaissance in the late fifteenth and early sixteenth century. John Locke (1632–1704) espoused the contractual nature of marriage and wrote of the value of self-determination. In the Enlightenment period in the eighteenth century a strong emphasis was placed on expression of individual freedom and one's rights. And during the American Revolution sentiments were raised supporting abolition of all types of tyranny, including tyranny of parents over children. All of this set the stage for a new way of thinking about childhood and the rights of children.
With the Industrial Revolution in the nineteenth century, structural changes were made in the nature of work and the family that further affected how children were raised and how their role in the family was construed. For the first time, the spheres of home and work were separated. The family was no longer the main economic unit and the period of childhood socialization was lengthened. During this time there was also a level of children's rights activity unmatched before or since. Child saving became a central theme of social reformers who wanted a public policy shift from punishment to education and rehabilitation. Many private, public, and especially progressive religious organizations became involved in efforts to create institutions—orphanages, houses of refuge, and reform schools—for abandoned, destitute, delinquent, wayward, and vagrant youths. Societies for the prevention of cruelty to children were established. The first child labor and compulsory schooling laws were enacted, and just before the turn of the twentieth century, new concepts of child protection were institutionalized.
In all of this there was a divide between those who focused mainly on nurturance and protection of children and those who focused more on children's rights to participation and self-expression. In the traditional nurturance model, adults were seen as the main determiners of what is in the best interest of the child. In the more rights-oriented model, greater decisional freedom for children was encouraged.
At the heart of this is a debate over the limits of parental authority versus child liberty. Lawrence Wrightsman (1994) suggests that a basic tension still exists between the circumstances in which the state should be permitted to take action for the child against the parents and the idea of the sanctity of family privacy and parental control. Even as late as the early twentieth century most children in the world had no legal status separate from their parents. The view that the best interests of the child were protected by parents was reflected in U.S. law in the early 1900s. For instance, the 1923 U.S. Supreme Court decision in Meyer v. Nebraska enunciated the fundamental legal right of parents to establish a home and bring up children, including dictating their education. In that case, the Court struck down a state law prohibiting foreign-language education in all primary schools. The Court held that the community's interest in children—resulting in the dictating of educational policy—could not prevail over parents' rights to control their child (and thus the child's education).
In 1967, the U.S. Supreme Court issued a decision that marked a new era in the relationship between children and the legal system. In the case of In re Gault, nullifying a juvenile delinquency adjudication and sentence that had been given by a juvenile court in which the affected child was not afforded the right to counsel, the Supreme Court rejected the unrestricted authority of the "benevolent" juvenile court system that permitted children to be incarcerated without the legal protections afforded adults. Gault breathed new life into the phrase children's rights.
Within a few years writings on children's rights in the United States and around the world began to multiply. One of the most important of these articles was "Children under the Law" (Rodham 1973), which thoroughly explored the implications of legal issues that were then quite new to systems of jurisprudence.
Universal Standards on the Rights of Children
In 1959, the United Nations approved a modest but much-cited ten-point Declaration of the Rights of the Child. In the early 1970s, writers John Holt and Richard Farson both promulgated bills of rights for children, as did New York attorneys Henry Foster and Doris Jonas Freed.
To mark the twentieth anniversary of the UN Declaration of the Rights of the Child, the United Nations proclaimed 1979 the International Year of the Child and embarked on a decade-long project to place into international treaty form the values contained in the declaration. What emerged in 1989, the Convention on the Rights of the Child, is a comprehensive compilation of rights of children—including civil-political, economic-social-cultural, and humanitarian—for all nations of the world to use as a common agreement on the minimum rights that governments should guarantee to children. The Convention represented a turning point in how children are viewed. It shifted the emphasis from simply protecting children and serving their needs to respecting their individual rights. The basic rights outlined in the Convention are presented in Table 1.
Prior to this, there had been more than eighty international legal instruments developed over a sixty-year period that in some way addressed the special status of children. However, the new convention is the ultimate articulation of children's rights in the sense that when nations ratify it they become bound by its provisions. The many articles of the convention stress the importance of actions being in the best interests of the child; recognize the child's evolving capacities; provide protection to the child from abuse, neglect, and exploitation; address the child's civil rights and rights in the juvenile justice system; affect the child's ability to be heard and represented meaningfully in official actions; focus on the child's right to an adequate education, standard of living, health and rehabilitative care, mental health, adoption, and foster care services; place importance on the child's access to diverse intellectual, artistic, and recreational resources; and protect children from involvement in armed conflict.
By 2001, the Convention had been ratified by all but two member nations of the UN, including almost all the world's democracies. The two member states that have not ratified the treaty are Somalia and the United States. In February 1995 the United States signed the Convention and then passed to the Senate Foreign Relations Committee for consideration. Consent for ratification has been delayed in the Senate because of a lengthy legal and constitutional review process and concerns by some over the Convention's social impact. Those opposed to ratification suggested that the Convention would weaken U.S. national and state sovereignty, and would lessen the authority of parents by allowing international bodies such as the UN to dictate how children in the United States should be raised. Roger Levesque (1996) argued that the Convention would be divergent with current U.S. jurisprudence and social policy and would represent a radical new view of children and families. Others asserted that the Convention is sufficiently protective of U.S. federal and state law and that it does emphasize the importance of family authority.
|rights to live with parents; rights to be reunited if separated from parents; rights to be provided with alternative care if necessary|
|basic health and welfare|
|rights of disabled children; rights to health and healthcare; rights to social security, rights to childcare; and rights to an adequate standard of living|
|education and cultural activities|
|rights to education; rights to play; rights to leisure and participation in cultural life and the arts|
|civic rights and freedom|
|rights to a name and nationality; rights to access to information; rights to freedom of expression, of thought, and of association; right not to be subjected to torture|
|rights of refugees, rights of children caught in conflict, rights of children in juvenile justice system; rights of children deprived of their liberty or suffering economic, sexual, or other exploitation|
Although by 2001 the Convention had been officially ratified by 191 nations, at that time few countries had developed concrete plans for its implementation. This has caused some to worry that the Convention will have more symbolic than practical impact. The treaty has spurred the construction of a variety of other children's rights documents around the world. For instance, in 1990 Africa signed the African Charter on the Rights and Welfare of Children. This document covers the same domain of rights as the Convention on the Rights of the Child but adds some specific articles that deal with local African concerns such as protections against child trafficking and prohibitions against apartheid. The African Charter was officially ratified by sixteen African states in 1999. In 1990 the Riyadh Guidelines were also signed. These guidelines emphasize the importance of an active voice for children in decision making. A variety of legal and institutional reforms concerning children's rights have also been put in place since the passage of the Convention in areas as diverse as Sri Lanka, Rwanda, South America, and Europe. For instance, in 1988 Brazil passed the Statute on the Child and Adolescent that promoted children's rights to protection, freedom from harm, and participation in society. In October of 1996, Jamaica and sixteen other countries in the Caribbean areas signed a Commitment to Action to improve national capacities to support children.
Status of Children Worldwide
Despite this progress, there are still many concerns about the status of children worldwide. According to the International Child Saving Alliance and a report by UNICEF, in 1999 650 million children still lived in poverty; 12 million children under age five died every year, many of preventable illnesses; 130 million children, especially girls, had no schooling; 160 million children were malnourished; 250 million children were involved in some type of child labor, often in unsanitary and harsh conditions; and over 300,000 children were estimated to be fighting in armed conflicts throughout the world. Added to this is the fact that, although there has been an increase in global wealth, the gap between the rich and the poor of the world is widening.
These statistics suggest that many children are still not enjoying the rights to basic health and welfare guaranteed in the Convention. Additionally, the Convention has been criticized by some as being culturally narrow and as promoting mainly Western ways of thinking about children and families. For instance, in 1994 Joan Miller asserted that cultures could be divided into those that are primarily rights-based versus those that are more duty-based. In rights-based cultures, individual freedom and personal preference is emphasized whereas in duty-based cultures, which include many Asian societies, fulfilling social obligations to others is more important. Some writers, such as Virginia Murphy-Berman (1996), argue that these types of cultural differences are reflected in variations in how children and families are viewed worldwide. For instance, there are variations worldwide in (1) what is seen as the appropriate distribution of power between parents and children in families, including what type of decisionmaking voice is allowed to children; (2) the degree to which children are encouraged to act on the basis of individual preference versus adhere to social norms and customs; (3) the scope of duty and responsibility family members have for themselves, their immediate and extended families, and their society; and (4) the importance of individual freedom versus family and group loyalties. Murphy-Berman and others suggest that, because of its emphasis on equality of relationships, individual rights, choice, and freedom of expression, the Convention is Western in tone. Other commentators, such as Gary Melton (1996), assert that the Convention is culturally inclusive because it protects the child's rights to a "family environment" and not a specific type of family structure.
Issues for the Future
Globalization will bring about powerful new linkages among people and nations through law, technology, the media, and the marketplace. An important question is how these new linkages will affect the lives of families and children across the world. The last decade of the twentieth century witnessed an unprecedented increase in the level of international cooperation around the issue of children's rights. The status of children and their social, intellectual, and physical welfare came to be a topic of great worldwide concern, and calls were raised for the creation of clear universal guidelines to ensure that children's rights were protected around the globe. The challenge is how to draft international documents that create binding standards for children but are sufficiently sensitive to variations in local cultural values and customs. Accommodating cultural diversity within broad global frameworks will continue to challenge decision makers as they struggle to formulate policies that enhance the dignity of children worldwide.
Children's Legal Rights. (1993). CQ Researcher (April 23):337–360.
International Save the Children's Alliance. (1999). "Children's Rights: Reality or Rhetoric." London: Author.
Levesque, R. J. (1996). "International Children's Rights: Can They Make a Difference in American Family Policy?" American Psychologist 51:1251–1256.
Melton, G. B. (1996). "The Child's Right to a Family Environment: Why Children's Rights and Family Values are Compatible." American Psychologist 51:1234–1238.
Miller, J. G. (1994). "Cultural Diversity in the Morality of Caring: Individually Oriented versus Duty-Based Moral Codes." Cross-Cultural Research 28:3–39.
Murphy-Berman, V.; Levesque, H.; and Berman, J. (1996). "U.N. Convention on the Rights of the Child: A Cross-Cultural View." American Psychologist 51:1257–1261.
Rodham, H. (1973). "Children under the Law." HarvardEducational Review 43:487–514.
Special Symposium Issue on the Rights of Children. (1993). Family Law Quarterly 27.
UNICEF. (2000). The State of the World's Children. New York: Author.
Woodhouse, B. B. (1993). "Hatching the Egg: A Child-Centered Perspective on Parents' Rights." Cardozo Law Review 14:1747–1865.
Wrightsman, L.; Nietzel, M.; and Fortune, W. (1994). Psychology and the Legal System. Pacific Grove, CA: Brooks/Cole.
Gault. In re 387 U.S. 1 (1967).
Meyer v. Nebraska 262 U.S. 390 (1923).
virginia murphy-bermanhoward a. davidson
"Children's Rights." International Encyclopedia of Marriage and Family. 2003. Encyclopedia.com. (July 31, 2016). http://www.encyclopedia.com/doc/1G2-3406900073.html
"Children's Rights." International Encyclopedia of Marriage and Family. 2003. Retrieved July 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3406900073.html
The opportunity for children to participate in political and legal decisions that affect them; in a broad sense, the rights of children to live free from hunger, abuse, neglect, and other inhumane conditions.
The issue of children's rights is poorly defined in legislation and by the courts, partly because U.S. society as a whole has not decided how much autonomy to grant children. Although the United States is built on protecting the interests of individuals and the twentieth century saw the rights of people with special needs recognized, the nation has yet to extend to children legal standing (the right to bring a court case) and legal protection similar to that of adults.
When most children's advocates talk about children's rights, they are not referring to the same rights held by adults, such as the rights to vote, drink, smoke, and run for office. Instead, they mean that more emphasis should be placed on children's status as "natural persons" deserving of benefits under the law as provided in the U.S. Constitution and its bill of rights.
The U.S. legal system grants rights to people who are deemed competent to exercise those rights. This qualification poses a dilemma for advocates of children's rights because most children lack the skills to advocate for themselves in the political, judicial, or economic arena. Yet, children's rights supporters believe that because of this powerlessness, children must be granted more protections and power than has been provided in their legal status.
parens patriae ("the state as parent") is the philosophy that guided many court decisions in the 1990s. This approach basically assumes that the government has a duty to make decisions on behalf of children to ensure that their best interests are met. But the doctrine can be interpreted as allowing government interests to replace interests children may wish to express on their own behalf. It also assumes that what the government wants matches what the child needs, which may or may not be true.
How U.S. society defines and provides children's rights has implications for many areas: how children are represented by attorneys; how resources are distributed, for example, in a family experiencing divorce; how long some children will live in abusive situations or foster care; how the role of families is viewed; and more.
Twelve-year-old Gregory Kingsley made the news headlines in 1992 when he went to court to sever his legal ties to his parents—and won (In re Kingsley, No. JU90-5245, 1992 WL 551484 [Fla. Cir. Ct. Oct. 21, 1992; Kingsley v. Kingsley, 623 So. 2d 780 (Fla. Ct. App. 1993)]). A year later, Kimberly Mays, age 17, won her legal battle to end any parental rights her biological parents might attempt to exercise (Twigg v. Mays, No. 88-4489-CA-01, 1993 WL 330624 [Fla. Cir. Ct. Aug. 18, 1993]). What was unusual in both cases was that children were allowed to advocate for their interests on their own behalf. Some children's rights advocates believe that competent children like Mays and Kingsley must be allowed to use the courts to pursue their interests. But these particular cases may have done more to promote the discussion of children's rights than to promote actual rights.
For example, when Kingsley's mother subsequently appealed the termination of her rights, the appellate court ruled that as a minor, Kingsley alone did not have standing (Kingsley v. Kingsley). It was ultimately the support of adults who later joined Kingsley in bringing the case (including his adoptive parents), along with his parents' inability to care for him, that influenced the appeals court to affirm the lower court's decision.
The situation surrounding Mays's parentage is so unusual that few similar cases are anticipated to arise. Mays was raised by Robert Mays and Barbara Mays after being mistakenly identified as their daughter in the hospital where she was born. When Mays's biological parents discovered the switch more than a decade later, they sought visitation with Mays, starting a battle between them and the man who had believed that Mays was his daughter and had raised her alone after his wife's death.
Except when there is evidence of neglect or abuse, parents usually retain their status as preferred caretakers of their children. The case of Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) established that the Liberty Clause of the fourteenth amendment gives parents the right to raise their children. The government's assumption is that parents' priorities match their children's.
The situation is less clear when the conflict is between children and their parents, as in the cases of Mays and Kingsley. When a family court is considering a child custody or support petition, it may become aware that the parents are not acting in their children's best interests. In these cases, the court may appoint a guardian ad litem to identify the children's needs and to advocate that those needs be met. This caretaker "for the lawsuit" may be an attorney chosen to act on behalf of the child in court. But heavy increases in child protection and family court caseloads nationwide have led to long delays in making determinations on behalf of children—and have led many advocates to suggest that a solution may lie in allowing children to initiate actions for themselves.
Many situations in which children and parents do not share common interests have not been resolved in favor of the minors. These include cases that challenge laws requiring minors to get their parents' consent before an abortion or that challenge parents' efforts to commit their children to psychiatric institutions. For example, in Parham v. J. R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979), the Supreme Court decided that when parents seek to institutionalize their children in mental hospitals, the due process provided to the children need be no more than an evaluation by an independent medical decision maker. Again, the Court upheld the government's assumption that what is best for the children is what the parents and the state decide, despite criticisms that this is not always true.
Some advocates of children's rights believe that children should be afforded the same constitutional and procedural safeguards that adults are given in court. The juvenile justice system is cited by some experts as an area in which the protections granted to children lag behind those provided to adults. For example, children may be detained in situations where adults would not be. Bail is not set for children, and children do not receive the benefit of a jury of their peers. In some states, as recently as the late 1980s, minors could receive longer incarceration sentences than could adults.
Some constitutional protections were won in the late 1960s on behalf of juveniles who could be tried as adults. These protections included the right to an attorney's advice at the time when the court was deciding whether to try the juvenile as an adult, the right to a hearing on that issue, and the right to the same information the court would use in making a decision (in re gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 ; Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d ). However, advances in this area have not kept pace with federal and state legislation expanding the punishment of juveniles as adults.
Legal commentators have noted that the courts were seemingly willing to recognize the constitutional rights of children during the 1960s and 1970s. A series of U.S. Supreme Court decisions recognized minors' rights to counsel in criminal proceedings, to protection from self-incrimination, as well as other procedural rights and general privacy rights. However, according to some commentators, the 1988 case of Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988) marked a turning point in the Court's recognition of children's constitutional rights. In that case, the Court limited the right of children to exercise free speech and free expression. According to the decision, children's rights "are not coextensive with the rights of adults in other settings."
One 1993 study of constitutional decisions concluded that from the 1960s to the early 1990s, the U.S. Supreme Court was increasingly less supportive of expanding children's claims to constitutional rights. The study showed that under the liberal warren court, 100 percent of decisions about constitutional cases upheld children's claims. The Burger Court, which followed, upheld children's claims in 59 percent of such decisions, and the Rehnquist Court in 22 percent of such cases to 1993. The cases in the survey concerned issues of equal protection, due process, privacy, free expression, and free exercise of religion.
Statistics such as these prompted concern among experts as to the denial of basic legal rights given to children. During the mid- to late-1990s, a number of scholarly article were published advocating expanded rights for children. However, the trend toward restricting children's rights continued into the early 2000s. Courts, with some frequency, find that children are not capable of managing full legal rights and of making decisions on their own behalf. The question of how far society should go in allowing children to participate in determining their destiny remains a difficult challenge.
Archard, David William. 2003. Children, Family, and the State. Aldershot, Hants, England, Burlington, Vt.: Ash-gate.
Cannon, Scott A. 1994. "Finding Their Own 'Place to Be': What Gregory Kingsley's and Kimberly Mays' 'Divorces' from Their Parents Have Done for Children's Rights." Loyola Law Review (winter).
Coons, John E., Robert H. Mnookin, and Stephen D. Sugar-man. 1991. "Puzzling over Children's Rights." Brigham Young University Law Review.
Dale, Michael J. 1992. "The Supreme Court and the Minimization of Children's Constitutional Rights: Implications for the Juvenile Justice System." Hamline Journal of Public Law and Policy (summer).
Federle, Katherine Hunt. 1993. "Constructing Rights for Children." Family Law Quarterly (fall).
Jackson, Rochelle D. 1999. "The War Over Children's Rights: And Justice for All? Equalizing the Rights of Children." Buffalo Human Rights Law Review. 223.
John, Mary. 2003. Children's Rights and Power: Charging Up for a New Century. London, New York: Jessica Kingsley.
Mezey, Susan Gluck. 1993. "Constitutional Adjudication of Children's Rights Claims in the United States Supreme Court, 1953–92." Family Law Quarterly (fall).
Ramsey, Sarah H., and Douglas E. Abrams. 2003. Children and the Law in a Nutshell. 2d ed. St. Paul, Minn.: West Group.
Sommer, Cristina Dugger. 1994. "Empowering Children: Granting Foster Children the Right to Initiate Parental Rights Termination Proceedings." Cornell Law Review (July).
"Children's Rights." West's Encyclopedia of American Law. 2005. Encyclopedia.com. (July 31, 2016). http://www.encyclopedia.com/doc/1G2-3437700821.html
"Children's Rights." West's Encyclopedia of American Law. 2005. Retrieved July 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3437700821.html
Over the course of American history, obligations and rights between children, their parents, and the state have evolved in response to the dynamic changes of the growing nation. Most prominently, the nearly absolute rights of parents have contracted as the state has taken an increasingly powerful role in protecting and educating children. Children's rights, however, have not emerged as a full-blown independent concept. Only pockets of law, primarily in the areas of criminal justice and reproductive rights, have evolved to consider children's rights discretely from those of their parents.
In early American history, the law viewed the child as an economic asset or liability, whose value was perceived in terms of labor capacity rendered to parents and other adults. During the colonial period and the early years of the republic, the father as the head of the household exercised unquestionable rights to the custody and control of his children both during the marriage and in the then-rare event of divorce. A father could hire out a child for wages or apprentice a child to another family without the mother's consent. Education, vocational training, and moral development were also the father's responsibility.
Only in certain circumstances did the state assume responsibility for children: in the event of illegitimate birth and thus the absence of an acknowledged father's duties, in the event of the death of a father or both parents, and in the event of the incompetence or financial inability of parents to care for or train their offspring. In such instances, the fate of the child was determined by the primary considerations of the ability of the adults to exercise proper maintenance and supervision, and the child's labor value. A child born out of wedlock was known as filius nullius or "child of no family" and the town's poor law official was authorized to place out the child with an unrelated family. Widows often lost their children when they became unable to support them. Before orphanages or adoption became common, such children were usually apprenticed or placed out to a family that would provide subsistence in exchange for labor.
During the 1800s as the nation grew more urban and industrial, emphasis on the child's value as a laborer diminished and more interest developed in child nurture and education. The new industrial age required fathers to leave their farms or home-based shops and work elsewhere. Mothers, who remained at home, replaced fathers as the main figures in the child's world. In addition, the new industrial order required a managerial middle class with skills that could be taught and learned not in the fields but in the classroom. Public school teachers began to replace parents as the primary educators of children. With this shift, children for the first time were looked upon as having some rights of their own.
The first recognition that children had rights independent of their parents' became embodied in the legal concept expressed as the "best interest of the child." Mothers gained favor as the parent better able to nurture the emotional needs of children of tender years. Following the increasingly more common event of divorce, mothers became more likely to prevail over fathers in custody disputes. Orphanages arose as a more child-centered alternative to placing out children whose parents were dead or unable to care for them. At the same time, public education rapidly took the place of homeschooling. The state replaced the parents in shaping the intellectual and vocational life of the child.
A variety of reforms designed to protect children from exploitation and mischief was advanced at the beginning of the twentieth century by a coalition of civic-minded adults, popularly known as child-savers. Groundbreaking measures included restrictive child labor laws, compulsory schoolattendance, and juvenile courts that adjudicated children who were neglected by their parents or delinquent in their own behavior. These initiatives placed the state in a decisively more active role, irreversibly reducing parental authority and laying the foundation for the modern American child welfare and educational structures.
Legal recognition of children's civil rights apart from their parents, however, began to develop only much later, in the context of the 1960s civil rights movements. In 1965 in Des Moines, Iowa, three Quaker children were suspended from school for symbolically protesting the Vietnam War in their classroom. In an important freedom of speech decision, the U.S. Supreme Court proclaimed that children "did not leave their constitutional rights at the school house door" (Tinker v. Des Moines, 1969).
In the more conservative 1970s, the Supreme Court allowed censorship of school newspapers and gave school authorities wide discretion to search student lockers. Later judicial rulings continued limiting the prerogatives of minor students. In the early twenty-first century the Court gave public school officials much wider latitude to test students for drugs. In Board of Education v. Lindsay Earls (2002), the Supreme Court permitted districts to require random tests of any student who takes part in extracurricular activities such as band, chorus, or academic competition. It had already upheld mandatory testing of student athletes.
Courts have accorded most serious consideration to rights for children in the procedural arena of juvenile justice. In 1965, the same year as the incident underlying Tinker v. Des Moines, a fifteen-year-old Gila County, Arizona, boy allegedly made an anonymous obscene phone call to an elderly neighbor. Without benefit of an attorney or a trial, Gerald Gault was sentenced to incarceration in a juvenile correctional institution until age twenty-one. The ensuing landmark Supreme Court decision, In re Gault (1967)– later expanded by several subsequent decisions–gave minor defendants in juvenile court criminal actions nearly all the due process protections that adult defendants receive in the regular criminal courts, including lawyers and the right against self-incrimination. However, by the end of the century rights to a speedy trial, bail, or a jury had not been established.
In the 1990s, in response to highly touted reports of increases in juvenile crime, most state legislatures adopted measures to bring ever younger juvenile offenders to trial in adult courts, and to subject them to adult sentencing rules. By the beginning of the twenty-first century a fourteen-yearold could be tried for murder as an adult, and a sixteen-yearold could be sentenced to execution in most states.
Although a partial array of rights for children vis-à-vis schools, courts, and other governmental institutions were recognized by the Supreme Court, it was reluctant to grant children rights that were traditionally exercised by parents. Some of the most contested of these rights concerned areas of reproductive decision-making. Soon after Roe v. Wade, the Court ruled that an adult woman's right to choose to end a pregnancy via abortion extended to adolescent girls as well. However, in holding that individual states could enact parental consent laws, the Court reserved substantial authority to parents. With the ambivalence typical of its earlier decisions on children's rights issues, the Court also held that a girl could bypass her parents' withholding of consent by petitioning a judge. If the judge found that she was a mature minor, she would be permitted her own choice (Bellotti v. Baird II, 1979). Parents, public opinion, and states continue to be seriously divided on the issue of minors' access to abortion, and challenges to varying legal precedents are likely to continue.
More latitude has been allowed on the less controversial issue of adolescent consent to other sensitive medical procedures, such as the treatment of sexually transmitted diseases and drug and alcohol abuse. In many states a doctor who cannot give an adolescent an aspirin without parental consent can treat the minor for a venereal disease. Contrarily–and in sharp contrast to the due process protections provided children who face possible criminal incarceration–the Supreme Court has ruled that parents may commit their minor child to a mental health facility upon the recommendation of a physician, with no judicial review (Parham v. J. R., 1979). A child thus volunteered by his parents need not be a "danger to self or others"–the adult standard for commitment–but only deemed in need of medical treatment.
In courts of family law, the child's best interest remains the standard in determining custody between divorced or separated biological parents. In practice, however, the child is rarely granted a representative in judicial custody proceedings and, in most states, the preference of a child who has attained adolescent age is only one consideration among many factors to be considered by the court. Thus, the best interest standard is seldom informed by direct or even indirect input from the child herself.
In key respects, the United Nations has surpassed the progressive reforms of the American legal system in clarifying and expanding the rights of children. The framework of principles articulated in the 1989 UN Convention on theRights of the Child provides that children have a right to a nurturing environment in accordance with their developmental needs; the right to have their voices heard in accordance with their ages; the right to independent representation in legal proceedings, and the right to economic and emotional support from their parents and from the state. By 2003, only Somalia and the United States had not signed this convention.
See also: Beyond the Best Interests of the Child; Child Saving; Divorce and Custody; Law, Children and the .
Ladd, Rosalind Ekman. 1996. Children's Rights Revisioned: Philosophical Readings. Belmont: Wadsworth.
Mason, Mary Ann. 1994. From Fathers' Property to Children's Rights: A History of Child Custody in America. New York: Columbia University Press.
Mnookin, Robert H., and D. Kelly Weisberg. 1994. Child, Family, and State: Problems and Materials on Children and the Law. Boston: Little, Brown.
Mary Ann Mason
MASON, MARY ANN. "Children's Rights." Encyclopedia of Children and Childhood in History and Society. 2004. Encyclopedia.com. (July 31, 2016). http://www.encyclopedia.com/doc/1G2-3402800104.html
MASON, MARY ANN. "Children's Rights." Encyclopedia of Children and Childhood in History and Society. 2004. Retrieved July 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3402800104.html
CHILDREN'S RIGHTS. The legal status of children has evolved over the course of American history, with frequent changes in the balance of rights among the state, parents, and children in response to social and economic transitions. Over time, the state has taken an increasingly active role in protecting and educating children, there by diminishing the rights of parents. It is fair to say, however, that children's rights as a full-blown independent concept has not developed. Even today there are only pockets of law in which children's rights are considered separate from those of their parents, and these are largely in the areas of reproductive rights and criminal justice.
For the whole of the colonial period and early Republic, Americans viewed children as economic assets whose labor was valuable to their parents and other adults. In this early era, the father as the head of the household had the complete right to the custody and control of his children both during the marriage and in the rare event of divorce. A father could hire out a child for wages or apprentice a child to another family without the mother's consent. Education, vocational training, and moral development were also the father's responsibility. The state took responsibility for children in one of several circumstances: the death of a father or both parents, the incompetence or financial inability of parents to care for or train their children, and the birth of illegitimate children. With these events the two major considerations in determining the fate of the child focused on the labor value of the child and the ability of the adults to properly maintain and supervise the child. Widows often lost their children because they were no longer able to support them. In the era before orphanages and adoption, such children were usually apprenticed or "placed out" to another family, who would support them in exchange for their services. A child born out of wedlock was known as "filius nullius" or "child of nobody" and the official in charge of enforcing the town's poor law was authorized to "place out" the child with a family.
Over the course of the nineteenth century, as more emphasis was placed on child nurture and education, various states passed legislation attempting to regulate child labor, largely by requiring a certain amount of schooling for children working in factories. However, such measures were hampered by the presence of loopholes and a lack of effective enforcement machinery. For example, in 1886 the state of New York passed a Factory Act prohibiting factory work by children under the age of thirteen, but appointed only two inspectors to oversee the state's 42,000 factories. The legal concept of "the best interest of the child" was initiated, the first recognition that children had rights independent of their parents. Under this rule, mothers gained favor as the parent better able to handle the emotional and nurturing needs of children of "tender years," and mothers were likely to prevail over fathers in the custody battles following the increasingly common event of divorce. Orphanages were introduced as a more child-centered approach than "placing out" for caring for children whose parents were dead or unable to care for them.
At the beginning of the twentieth century a coalition of civic-minded adults, popularly known as "child-savers," fought for a variety of legal reforms designed to protect children. Efforts were made to enact more effective child labor laws, although these efforts were initially thwarted at the federal level. In Hammer v. Dagenhart (1918) the Supreme Court ruled that in its attempt to regulate child labor Congress had exceeded its constitutional authority and violated the rights of the states. The Fair Labor Standards Act of 1938 finally succeeded in prohibiting employment of children under sixteen in industries engaging in interstate commerce. The early reformers were more successful with regard to compulsory school attendance and the establishment of juvenile courts, which handled children who were either neglected by their parents or delinquent in their own behavior. The first such court was established in Chicago in 1899. Government took a decisively more active role, irrevocably reducing parental authority and laying the ground for our modern child welfare and educational structure.
It was not until the civil rights movement of the 1960s that children gained some civil rights of their own, apart from their parents. In 1965 three Quaker school-children were suspended for wearing black armbands in their classroom to protest the Vietnam War. In Tinker v. Des Moines School District (1969) the Supreme Court stated that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Yet the Court in the 1970s allowed censorship of school newspapers and gave school authorities wide discretion to search student lockers.
The direction of the Court continued toward limiting student rights. In the early twenty-first century, the Supreme Court gave public school officials much wider authority to test students for drugs, setting the stage for districts to move toward screening everyone who attends school. In Board of Education v. Lindsay Earls (2002) the Supreme Court permitted districts to require random tests of any student who takes part in extracurricular activities such as band, chorus, or academic competition. Previously, the Court had upheld mandatory testing of student athletes.
It is in the arena of juvenile justice that courts have most seriously considered rights for children. In 1965, the same year that the Quaker children were protesting the Vietnam War in Des Moines, in Arizona fifteen-year-old Gerald Gault was charged with making an anonymous obscene phone call to an elderly neighbor. Without the benefit of a lawyer or a trial, Gerald was sentenced to incarceration in a boys' correctional institution until age twenty-one. The ensuing landmark Supreme Court decision, In Re Gault (1967), later expanded by several sub-sequent decisions, gave children who were defendants in juvenile court criminal actions nearly all the due process protections that adult defendants receive in the regular criminal courts, including lawyers and the right against self-incrimination. The rights to a speedy trial, bail, or a jury were still lacking at the close of the twentieth century.
In the 1990s, state legislatures, responding to increased juvenile crime, grew eager to throw juveniles into adult courts at ever-younger ages, and to apply adult punishments to children. In most states a fourteen-year-old can be tried for murder as an adult, and the Supreme Court has declared that a sixteen-year-old can be sentenced to execution (Thompson v. Oklahoma, 1988).
While the Supreme Court has been willing to recognize some limited rights for children with regard to schools, courts, and other governmental institutions, it has been reluctant to grant children rights that might interfere with those of their parents. Much of this concern has focused on abortion. Soon after Roe v. Wade (1973) the Court conceded that an adult woman's right to abortion extended to adolescent girls as well, but it also carved out a good deal of room for parents' rights. The Court decided that individual states could pass parental consent laws. However, with the ambivalence typical of its earlier decisions on children's rights issues, the Court also held that a girl could bypass her parents by going to a judge. If the judge declared that she was a mature minor, the decision would be hers alone (Bellotti v. Baird II, 1979).
A minor's consent to abortion is a contentious issue. States are seriously divided on the issue, and the battles continue. There has, however, been some change on the somewhat less controversial issue of adolescent consent to other sensitive medical procedures, such as the treatment of sexually transmitted diseases and drug and alcohol abuse. In many states, a doctor who cannot give an adolescent an aspirin without parental consent can treat the minor for a venereal disease. On the other hand, in sharp contrast to the adult protections provided children who face possible criminal incarceration, the Supreme Court ruled in Parham v. JR (1979) that parents retain the right to commit their minor child to a mental health facility upon the recommendation of a physician with no judicial review. A child "volunteered" by his parents need not be a "danger to self or others"—the adult standard for commitment—but only deemed in need of medical treatment.
In family law, the "child's best interest" is always the standard in determining child custody between biological parents, but in practice the child is rarely granted a representative in judicial proceedings where custody is determined, and the preference of an adolescent child is only one consideration in a long list of factors to be considered in most states. The United Nations has in some ways gone further than the American legal system in expanding and clarifying the rights of the child. The framework of principles articulated in the 1989 U.N. Convention on the Rights of the Child provides that children have a right to a nurturing environment in accordance with their developmental needs; the right to have their voices heard in accordance with their ages; the right to legal representation; and the right to economic and emotional support from their parents and from the state.
Ladd, Rosalind Ekman. Children's Rights Re-visioned: Philosophical Readings. Belmont, Calif.: Wadsworth, 1996.
Mason, Mary Ann. From Fathers' Property to Children's Rights: A History of Child Custody in America. New York: Columbia University Press, 1994.
Mnookin, Robert H., and D. Kelly Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. 4th ed. Gaithersburg, Md.: Aspen, 2000.
"Children's Rights." Dictionary of American History. 2003. Encyclopedia.com. (July 31, 2016). http://www.encyclopedia.com/doc/1G2-3401800788.html
"Children's Rights." Dictionary of American History. 2003. Retrieved July 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3401800788.html
Children’s rights involve a double claim. First, they reaffirm children as full members of the human family and assert that children have an equal right to the protection of their fundamental human rights without discrimination based on age. Second, children’s rights acknowledge children’s developing capacity as well as their vulnerability and encompass additional, special rights for children.
The concept of children’s rights has gradually evolved and has not always included both equal and special human rights. Children’s rights emerged at the end of the nineteenth century in the context of uncontrolled industrialization and its dire consequences for the living conditions of poor working-class children. The child protection movement considered it a moral duty to alleviate the plight of vulnerable children, who were seen as passive victims and mere objects of intervention. These concerns gave rise to the development of child protection legislation and policies regarding child labor, compulsory education, and juvenile justice, and also led to the adoption of the 1924 Declaration of the Rights of the Child (Geneva Declaration) containing a list of protections that ought to be granted to children.
With the advent and development of the welfare state, throughout the twentieth century, children’s rights became increasingly framed within social welfare discourse. In addition to protection against all forms of neglect, cruelty, and exploitation, children’s rights now also included the right to special provisions, such as education, health care, family support, and social welfare services. This welfarist view is reflected in the 1959 United Nations Declaration of the Rights of the Child, which builds upon children’s dependency on both their family and the state. During the 1970s, in step with other civil rights and anti-authoritarian emancipation movements, the children’s liberation movement began to challenge the exclusive attention being paid to children’s protection and welfare rights. The movement argued in favor of children’s right to autonomy, including the right to freedom of speech, freedom of assembly, and due process guarantees in judicial proceedings. The child liberationist’s claim for children’s equal rights was directed against both family and state, whose paternalistic approaches to children were viewed as an impediment to young people’s pursuit of autonomy and full participation in society.
The protectionist, welfarist, and liberationist approaches to children’s rights converged in the 1989 United Nations Convention on the Rights of the Child, a legally binding international instrument that has been ratified by all UN member states, except for Somalia and the United States. This convention contains a broad range of rights, including civil and political rights as well as social, economic, and cultural rights, and can be summarized by the so-called “three Ps,” which include protection rights (e.g., against violence or exploitation), provision rights (e.g., education or health care provisions), and participation rights (e.g., freedom of expression or right to information). The convention’s core message is that children are no longer to be seen as mere passive objects of intervention, but should be recognized as bearers of rights. Children therefore have the right, in accordance with their evolving capacities, to actively take part in shaping their own lives and environments. Since its adoption, various interest groups have made intensive use of the convention as an advocacy tool in a vast array of fields directly and indirectly relating to children’s lives and promoting both children’s equal and special rights.
SEE ALSO Child Labor; Children; Civil Rights; Human Rights
Archard, David. 2004. Children: Rights and Childhood. 2nd ed. London: Routledge.
Verhellen, Eugeen. 2000. Convention on the Rights of the Child: Background, Motivation, Strategies, Main Themes. 3rd ed. Louvain, Belgium: Garant.
"Children’s Rights." International Encyclopedia of the Social Sciences. 2008. Encyclopedia.com. (July 31, 2016). http://www.encyclopedia.com/doc/1G2-3045300321.html
"Children’s Rights." International Encyclopedia of the Social Sciences. 2008. Retrieved July 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3045300321.html