Children's Rights

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.

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.

See also:Adoption; Child Abuse: Physical Abuseand Neglect; Child Abuse: Psychological Maltreatment; Child Abuse: Sexual Abuse; Child Custody; Childhood; Family Law; Family Policy; Orphans; Spanking

Bibliography

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.

Cases

Gault. In re 387 U.S. 1 (1967).

Meyer v. Nebraska 262 U.S. 390 (1923).

virginia murphy-bermanhoward a. davidson