From the late nineteenth century into the early twenty-first century, U.S. society increasingly became concerned about the welfare of the nation's children. Congress and the states passed special laws recognizing that children held a right to a healthful upbringing and are particularly vulnerable to being victimized by criminals. Children have a right to basic needs such as food, clothing, shelter, medical care, education, and safety from society's ills. All states have laws requiring biological parents to provide these basic needs. However parents are given much discretion on how they satisfy these responsibilities of providing nurturing and safety. Criminal penalties were provided for those who denied these rights through abuse, assault, abduction, or some other action. The laws addressed acts against children at home, in places of worship, at childcare facilities, and in the workplace. The laws also placed an emphasis on prevention as well as prosecution.
The basis for these criminal laws was the recognition that children have special needs separate from adults. By the twentieth century the public determined that to protect the long-term interests of society children must be provided the basic needs to develop into healthy and productive adults. At the same time the laws protect the parents' interests in raising their children as they see fit. Overall the United States gives parents greater flexibility than many other countries.
When a child faces hunger, abuse, or neglect, the state intervenes in family matters. Those who deny these basic rights to children can be charged with criminal offenses. In addition criminal penalties are particularly harsh toward those who abuse, sexually assault, murder, or kidnap children.
Protection of children
For centuries children over the age of seven were considered little adults, especially the poor who often had to work to help support their families. They were also considered as "property" owned by their parents with few rights. Fathers in particular had nearly total power in disciplining and working their children, especially in farming communities where children fed and tended livestock. The government stayed away from internal family relations. As a result, no specific criminal laws addressed child abuse or neglect. Assaults or kidnapping by others were treated by general criminal laws. Such was the legal status of children during much of the American colonial period prior to the American Revolution (1775–83).
By the late eighteenth century, public perceptions of children began to shift. American society changed throughout the nineteenth century as cities grew around newly developing industrial centers. Immigration was growing as well, particularly from eastern Europe by the late part of the century. With parents working long hours in factories, children were left alone and some citizens became concerned for their well-being, worried that they were susceptible to becoming crime victims. Others were concerned about the effects of so many unsupervised children on the streets, that they could enter into criminal activity making the streets less safe for others. In addition sociological perceptions of children continued to change.
As society realized children were not just little versions of adults, ideas about child development grew. It became known that children did not have the same reasoning abilities as most adults and could not be held responsible for all of their actions, especially if they did not have proper supervision. Early promoters of children's rights believed children needed proper legal protection and special consideration in the justice system.
Other changes in society also affected children in the country after the American Civil War (1861–65). With fathers increasingly away at factory work, mothers gained greater responsibility in raising children. This trend led courts to adopt the "tender years" policy, which recognized mothers as the primary caregivers for a child's early years.
With all of these changes in attitude and growing concerns over the welfare of the young, courts applied the concept of parens patriae more freely. The concept meant that the state could act as a parent if it was believed necessary. Under this concept, the government has the duty to intervene in families to make decisions in the best interest of the children when needed.
Organized childcare outside of the home assists parents in providing the basic needs of a child. Though often controversial in much of the twentieth century, organized childcare has a long history in the United States. Infant daycare facilities have operated in parts of Boston and New York City since the early 1800s. The number of day nurseries increased by the late nineteenth century as industries grew and increasing numbers of immigrants, both men and women, sought jobs. These facilities were primarily for children of the working poor and run by private charities. For middle-class families, kindergartens became available in the mid-nineteenth century.
Publicly funded childcare programs did not come into existence until World War II (1939–45). Congress passed the Community Facilities Act in 1941 to create childcare centers for war industry workers. Many women worked in the war industries while their husbands were away in the military. This national childcare program ended after the war, though California kept some centers open through state support.
In place of a national childcare system, other programs were created throughout the postwar years to assist parents and fulfill the rights of children. These programs included Head Start for poor children under four years of age; Aid to Families with Dependent Children, which helped pay for daycare; the At-Risk Child Care Program, which gave assistance to families in need; income tax deductions for childcare expenses; and the 1993 Family Leave Act, which required large companies to grant unpaid leave to employees who needed time off to care for children or family members.
In addition to programs for younger children, all school-aged youngsters are provided free education at public schools. School aged children with disabilities are also provided access to education through the Individuals with Disabilities Education Act of 1975. The Medicaid program was created to assist the healthcare needs of the poor and their children.
Organized childcare continued as privately-owned businesses in the United States into the twenty-first century. To ensure the quality and safety of private childcare centers, states regulate these services. State agencies require childcare centers to screen workers for criminal records; facilities and workers who commit severe violations can be criminally charged.
Another key concern over children's rights arose in the late nineteenth century. Many children were working long hours in dangerous factories for very low pay. Employing children was common in the city, especially among poor immigrant populations. It was not until 1938 that Congress passed the Fair Labor Standards Act (FLSA) restricting child labor. The act continued to be the primary federal child labor law into the twenty-first century. Most states also passed child labor laws while other relied solely on the FLSA.
The limits imposed by the Fair Labor Standards Act are complex and dependent on the nature of the work and age of the youth. Children must be at least fourteen years of age to work in non-manufacturing jobs outside of school hours. They must be at least sixteen for general employment during school hours, and they must be eighteen to work in occupations considered hazardous by the Department of Labor, such as manufacturing of explosives, coal mining, logging, and driving a motor vehicle.
In some states, children must also have parental permission to work at certain jobs. Under some state laws, employers in certain businesses must obtain employment certificates from
the state to legally employ a youth under a certain age. On the other hand, parents cannot force minors to work in hazardous jobs. Criminal prosecution can result from violations of child labor laws, both involving employers and the parents depending on the specific case. Those convicted of child labor violations can be fined. An employer cannot use the defense of being ignorant of a youth's age if caught illegally employing a minor, even if the youth lied on his or her job application.
Kidnapping and abduction
Kidnapping is the aggravated (for ransom or injury) false imprisonment of a person. In colonial days kidnapping was just a misdemeanor punishable by fine or some other public punishment. There was no special category when the victim was a child. In addition kidnapping was not considered a crime unless the abduction was violent or involved international travel. The newly formed states passed kidnapping laws following founding of the United States, but most states continued to consider it a misdemeanor crime. As a result children of the wealthy were frequently targeted by kidnappers seeking high ransoms. Often the children were murdered even when the ransom was paid. Kidnappers would commonly take their victims to another state to be outside the jurisdictional territory of the state in which the abductions occurred.
The kidnapping and murder of the infant son of famous American aviator Charles Lindbergh (1902–1974) in 1932 brought a public outcry for stiffer kidnapping penalties. Congress passed the Lindbergh Law making kidnapping a federal criminal offense when the kidnapper takes his victim across the state borders.
The kidnapping of children for ransom declined through the latter half of the twentieth century, replaced by kidnapping cases involving bitter child custody cases and by sex offenders. To address parental kidnappings in violation of custody rights, Congress passed first the Uniform Child Custody Jurisdiction Act followed by the federal Parental Kidnapping Prevention Act of 1994. Most states also include parental kidnapping in their general kidnapping laws.
Abductions by sex offenders drew considerable attention in the 1990s and afterwards. Because sex offenders have a very high risk of repeating crimes, the State of Washington passed the first law in the nation in 1990 that authorized criminal justice officials to notify communities when a dangerous sex offender is released in their area.
The following years witnessed several highly publicized cases of children being abducted and murdered. As a result a series of laws were passed to stiffen the penalties for these crimes against children. The brutal rape and murder of seven year-old Megan Kanka in 1994 led to a public outcry for a national community notification system like the one Washington had established four years earlier. On May 17, 1996, President Bill Clinton (1946–; served 1993–2001) signed Megan's Law. The law required states to register offenders convicted of sex crimes against children and make personal information on registered sex offenders available to the public.
After nine-year-old Amber Hagerman of Arlington, Texas, was abducted and brutally murdered in January 1996, more legislative remedies were pursued to prosecute criminals victimizing children and to attempt to prevent such crimes. The most significant came in 2003 when Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act, known as the PROTECT Act. The act made child abuse killings first-degree murders subject to the death penalty. It also strengthened penalties for kidnapping and eliminated the statute of limitations for child abduction and sex crimes. Previously once the child victim reached the age of twenty-five, the offender could no longer be criminally prosecuted. The minimum penalty for kidnapping by a non-family member rose to twenty years. In addition a person convicted in a first offense of child sexual exploitation and child pornography faced penalties from fifteen to thirty years in prison. A "two strikes" rule in the act requires life imprisonment for offenders who commit two serious sexual abuse offenses against a child. The act also prohibits any obscene materials depicting children and provides harsher penalties than those penalties provided in general obscenity laws.
A key feature of the PROTECT Act was creation of the AMBER Alert program. The program established a national communications network for alerting the public immediately after an abduction of a youth under eighteen years of age has been reported. The child must be considered in danger of harm or death. The alerts bring in the assistance of local public in spotting the missing child, their abductor, or the vehicle reportedly used in the abduction.
During the late 1990s concern also arose over the abduction of children for the purposes of selling them into international sex trade networks. To give law enforcement more tools to address this growing issue of human trafficking, Congress passed the Victims of Trafficking and Violence Protection Act of 2000.
Forms of child abuse
Child abuse is a major social problem; every child has the right to be free of physical and emotional harm. Child abuse is causing or failing to prevent actions against children that can result in serious physical or emotional harm, including sexual abuse and even death. This also includes neglect or placing a child at risk of serious harm, even if no injury results. Some forms of physical abuse include locking kids in closets, tying them to a bed, making them stand for long periods of time, or leaving them home alone. A child's right to freedom from abuse is balanced with the right of parents to discipline their children without government interference.
Child sexual abuse not only includes rape and improper touching, but also other actions such as a person exposing his or her private parts to a child or giving a child sexually explicit or pornographic material. Even if the child is not physically touched or harmed, these are still crimes of sexual abuse.
While sexual abuse is the least common form of child abuse, the most common is neglect. Neglect can lead to both physical and emotional harm. It is difficult to define neglect, because parents in poverty situations cannot provide as much care as those with higher incomes. Improper healthcare or not providing an education can also qualify as criminal neglect. Emotional abuse comes from exposure to domestic violence, drug use, dirty homes, and inadequate clothing.
Criminalizing child abuse
Real concern over child abuse did not surface until after the Civil War (1861–65) in the 1870s. At that time, the American Society for the Prevention of Cruelty to Animals went to court over an eight-year-old New York girl who was whipped and beaten regularly by her foster parents. The society argued in court that children deserved at least the same protections as animals from abuse.
The society's argument worked. The foster mother was convicted of assault and sentenced to one year of hard labor. This court victory led to the establishment of the New York Society for the Prevention of Cruelty to Children in 1874. The following year the New York legislature passed a law prohibiting child abuse.
Child abuse did not catch national attention, however, for another ninety years. In 1962 Dr. Henry Kempe published an article called "The Battered Child Syndrome" in the Journal of the American Medical Association. The article described various signs of child abuse to help doctors detect abuse among their patients. The signs or symptoms mentioned included skin, bone, and abdominal injuries. Behavioral clues included anxiety or depression, or self-destructive actions.
The article had a far wider affect than simply alerting physicians. Media attention about the article greatly increased public awareness of child abuse. By 1970 every state had passed child abuse laws. These laws required teachers, doctors, childcare staff, and social workers to report suspected child abuse to authorities. Failing to report suspected abuse could lead to criminal charges; eighteen states legally required anyone who suspected abuse to report it, even friends of the child's family.
Every state also has laws limiting the criminal liability of those who report suspicious symptoms. They cannot be sued or criminally charged for making reports that prove inaccurate as long as they acted in good faith or with the best interests of the child in mind. To support the growing caseload, Congress passed the federal Child Abuse Prevention and Treatment Act (CAPTA) in 1974. The act required states to create mandatory requirements for people to report suspected cases of child abuse. It was now a crime in all fifty states to not report suspected child abuse. It also created the National Center on Child Abuse and Neglect with the Department of Health and Human Services and provided federal funding for child abuse investigations and the protective services provided for abused children.
State and federal child abuse programs offered other information about how to detect abuse. For example, doctors and teachers may look for suspicious statements by parents or the child, public humiliation of a child by the parents, unexplained absences, or a sudden drop in school grades.
Child abuse as a defense in the courtroom
Individual histories of child abuse were increasingly used in criminal trials as a defense against serious allegations. One of the earliest and most publicized cases involving a defense involving child abuse was the murder trial of the Menendez brothers in Southern California. In August 1989 Erik and Lyle Menendez murdered their parents in their Beverly Hills mansion. The two brothers stood to inherit $14 million. The following March they were arrested and charged with murder. During their trial they claimed the murders were in self-defense after years of sexual abuse by their father and neglect by their mother. After an initial mistrial for one of the two brothers, a jury found them guilty in 1996 and sentenced them to life in prison.
Similarly in October 1994 Susan Smith in Union County, South Carolina, drove her car into a lake drowning her three-year-old and sixteen-month-old sons. She murdered her children in order to keep a love affair alive with a boyfriend. In her defense, Smith claimed she suffered several emotional problems including depression following years of sexual abuse from a stepfather. The jury found Smith guilty of murder but gave her a life in prison sentence rather than death, perhaps because of the defense.
Child protective services
State service agencies to protect children enforce laws prohibiting child abuse. These laws vary from state to state but some common procedures exist. Usually, reports of suspected child abuse went to local police departments, but in the 1970s child protective service agencies took over this responsibility in about half the states. Some provided free telephone hotlines to report suspected abuse.
After receiving notification of possible abuse, the agency must investigate, intervene if necessary to protect the child from further abuse, and keep written records. The investigation, sometimes performed by the police, includes interviews with the child, parents, doctors, and teachers. Agency intervention or involvement can include placing a child temporarily in a detention home or in foster care.
In the late 1990s over 560,000 youths were in foster care at any specified time. Intervention can also include monitoring of a home situation and providing counseling if needed for the parents. The number of cases each child protective worker handles can be astounding. Investigations in 1998 found some 903,000 children were abused or neglected in that year or about 13 for every 1,000 children in the general U.S. population. This was only for cases that were actually reported; many incidents of child abuse are never reported at all. About 1,087 children died from child abuse in 1998.
In severe cases, an abused child is permanently removed from a home and put up for adoption. The protective agency is required to write a report of its findings, which may lead to criminal charges against the abusing person. Abuse findings go into computer databases that include information on both known child abusers and those suspected of abuse.
Having an easily available database of abuse reports has led to concern and opposition. Opponents claim such a system could include information on innocent persons whose reputations could be greatly harmed if they are labeled as child abusers. In 1984 the Victims of Child Abuse Laws group formed to assist people falsely accused of child abuse.
Child sexual abuse and the Catholic Church
Though various cases of child sexual abuse caught the public's eye in the United States through the 1990s and early 2000s, the nation was stunned by allegations that involved the Catholic Church. The first awareness of what would later unfold into a huge child abuse scandal came in the early 1990s when Father James Porter was convicted of abusing some one hundred boys and girls in various Catholic parishes around the Boston area stretching back into the 1960s.
Children's Defense Fund
The Children's Defense Fund (CDF) is a national organization that promotes the social welfare of children. The CDF lobbies Congress for funding to support various children's programs and conducts national awareness campaigns. It regularly publishes reports on the health and social well-being of children. Much of CDF's efforts have focused on saving federal programs from budget cuts.
Marian Wright Edelman, the first black woman to pass the state bar exam in Mississippi, founded the CDF in 1973. Edelman first gained national attention in the 1960s when she successfully stopped the state of Mississippi from withholding federal Head Start program funds from black American children. By the late 1960s Edelman had established the Washington Research Project, a group dedicated to fighting racial discrimination. A staff attorney for the group was Hillary Rodham Clinton, who later became first lady.
In 1973 Edelman turned the Washington Research Project into the Children's Defense Fund to focus on the needs of children. After fighting year after year to prevent budget cuts, the CDF got a boost when Bill Clinton became president in 1993. Clinton signed two pieces of legislation promoted by CDF during his terms. The Family and Medical Leave Act of 1993 provided the right for workers to take unpaid leave to care for children or family members in medical need, while the Full Faith and Credit for Child Support Orders Act of 1994 increased enforcement of child support payments.
Porter was found guilty and the court sentenced him to up to twenty years in prison in December 1993. The case shocked Catholics and others around Boston, and the city's cardinal (a high ranking Catholic Church official), Bernard Law, consoled the public by stating that Porter's abuse was an isolated or single case. Law condemned the news media for its coverage of the scandal, but introduced a new sexual abuse policy for his region anyway to calm his church members.
The Boston scandal quieted down for the next several years until another area Catholic priest, John Geoghan, was investigated for 130 cases of child sexual abuse in 1998. Geoghan was forced out of the priesthood and convicted in January 2002 of child sexual abuse. The court sentenced him to up to ten years in prison. Again Cardinal Law insisted this was simply another unusual case regarding Catholic priests.
After Geoghan's case and conviction, however, many more alleged victims came forward about sexual abuse involving priests. Newspaper inquiries and criminal investigations revealed many more. Secret church documents became public in 2002 and proved the Catholic Church not only had knowledge of sexual abuse by priests but had covered it up.
The documents mentioned numerous priests, hundreds of victims, and how claims were repeatedly ignored by church officials. Some alleged victims, however, had been paid off to keep them quiet while certain priests were transferred to new churches and given brief counseling. The documents showed that even Geoghan had been transferred two times for molesting children before finally being caught by authorities. Another priest, Paul Shanley, had also been transferred to new parishes despite a history of child sexual abuse known to the church.
Massachusetts had no law that required suspected child abuse to be reported to authorities. Some cases of child rape, however, were clearly criminal acts and they too went unreported by church authorities. Documents showed church leaders made no attempt to ever inform law enforcement of these criminal activities. As public disgust grew from one revelation after another, Cardinal Law repeatedly refused to resign from his post. In a rare move in April 2002, the pope summoned all U.S. cardinals to the Vatican in Rome to discuss the sex abuse issue.
By late 2002 some 1,200 Catholic priests in the United States were accused of child sex abuse. Four U.S. bishops
Cardinal Bernard Law
Bernard Law was born on November 4, 1931, to a U.S. Air Force colonel and his wife in Torreon, Mexico. The family moved from one military base to another; as a result Law was educated in North and South America and the Virgin Islands. He then attended Harvard University and received a degree in medieval history in 1953. Following Harvard, Law entered the seminary and became an ordained Catholic priest in 1961.
During his years in the Catholic Church, Law was known for his work with immigrants and minorities. In the 1960s he was very active in the Civil Rights movement in Mississippi, and in 1968 Law took a job in the office of the U.S. Conference of Catholic Bishops. He became known among church leaders across the country and was appointed bishop in a Missouri diocese in 1973. Law became bishop in Boston in 1984, one of the most powerful Catholic Church regions in the nation. The following year he was ordained as a cardinal.
Law was immensely popular in the Boston area. He rose in international prominence as well within the church. Law also met with President George W. Bush (1946–; served 2001–) and other religious leaders shortly after the September 11, 2001, terrorist attacks in New York City and Washington, D.C.
Law's leadership began to crumble in 2002 as the child sexual abuse scandal spread in Boston, involving hundreds of victims and numerous priests over a period of decades. In December 2002 when secret church documents revealed that Law not only knew about the abuse but actually tried to cover it up, Law was forced to resign as cardinal before the pope.
In May 2004 Law received a new assignment in Rome, Italy. Much anger resulted in Boston that Law should remain in a church leadership position after being directly involved in covering up so much child sexual abuse.
resigned as the scandal went worldwide; other bishops resigned in Argentina, Germany, Ireland, Canada, Switzerland, Poland, and elsewhere. Then in December 2002 even more revealing church documents were discovered. These new documents described widespread child sex abuse in the Catholic Church and an equally large cover-up. Not only was Cardinal Law aware of all the abuse, but he actively tried to hide incident after incident of child rape from the public and law enforcement.
The second set of documents finally led to Cardinal Law's resignation on December 13, 2002. The Boston archdiocese was near bankruptcy under the weight of some four hundred claims of sexual abuse. By October 2003 Law's successor, Archbishop Sean P. O'Malley, helped negotiate an $85 million settlement with more than 550 sexual abuse victims. In May 2004 the Boston archdiocese announced the closure of about sixty-five parishes as it continued to deal with the consequences of the abuse scandal.
Protecting a child's right to a healthy, loving upbringing is a key responsibility of family courts. Family courts often address children's rights by attempting to resolve family problems, not by handing out criminal sentences. They hear cases of child abuse and neglect and enforce payment of child support (money used to raise the child).
Parents are granted freedom to raise their children as they see fit in the Fourteenth Amendment. When biological parents disagree over how to raise a child—usually occurring in divorce proceedings—family courts step in to determine child custody and support matters. In situations other than divorce, courts may still determine parents are not acting in the best interests of their child. Parents can be considered unfit if they abuse their children in any way, including the denial of medical care or financial support. A judge can appoint a guardian in such situations as the court considers other remedies.
A crucial part of divorce proceedings is child support, the payments made by one parent to the other parent who has custody rights. Both parents have a legal responsibility to provide support to a child for basic needs. Most children in single parent homes have the right to support payments, which are usually provided in divorce rulings. Other forms of support, such as paying for a child's insurance coverage, can also be ordered by the court.
States are responsible for making sure parents satisfy their child support responsibilities, which are often complicated by jurisdictional (the area within which a government agency or court has legal authority) issues. Parents often move to other areas or states for jobs or to establish a new life. To help states keep track of families, Congress passed the Uniform Interstate Family Support Act of 1992, followed by the Full Faith and Credit for Child Support Orders Act of 1994. These acts created rules about handling custody cases that span state lines, such as allowing states to pursue parents who owe support payments, even if they have moved to another state.
States set guidelines for what is considered adequate support, which usually ends when children reach age twenty-one, marry, or are able to support themselves. Civil and criminal penalties can be assessed against parents who do not make their child support payments. Criminal penalties can include jail sentences and fines and are applied to repeat offenders. Those who cross a state line to avoid paying support may also face federal prosecution.
By the early 1990s concern over the nonpayment of court ordered support grew. A report in 1992 found that $27 billion in support had not been paid. The U.S. Department of Justice established the Office of Child Support Enforcement to help states recover support dollars. The number of cases was enormous and forced states to find ways to collect support payments, such as claiming part of a parent's paycheck, charging fines, seizing owned property, even taking away a nonpaying parent's driver's license.
While children have greater rights than adults concerning their basic needs, children have less rights than adults in certain other circumstances like school classrooms and at school events. Free speech and expression are limited if they are at odds with a school's educational mission, which includes courtesy, tolerance, and respect for others.
The courtroom is another place where juveniles have fewer rights. In juvenile court systems, unlike adults in regular courts, youths do not have the right to bail nor a jury trial. In addition, courts usually side with parents or guardians rather than children in determining what is in a child's best interest.
Children also do not have the right to file a lawsuit in court. There was some pressure in the 1990s to increase the legal standing of minors. On one occasion, a twelve-year-old boy took action in the state courts of Florida to cut legal ties with his parents. He stated that they were financially unable to provide for his basic needs, and though he won the case, an appeals court reversed the ruling saying he had no legal right to file the suit in the first place. Once adults joined him in the suit, his court victory was assured.
Children's rights advocates claim minors should be allowed to file lawsuits if they show a suitable level of knowledge. Society continues to wrestle with how much say a youth should legally have in his or her future.
Another difference in the rights of children and adults involves obscene materials. States protect the young from certain kinds of books, videos, and movies. For example, some sexually explicit materials may be considered obscene for children but not for adults. The same concept is applied to television programming. Television networks established family viewing times in the evening when children are most likely to be watching.
Creating family viewing guidelines were designed to protect children from sexually explicit or violent programs. Television networks steadily drifted from these standards in the twenty-first century. Similarly, the government has made efforts to regulate explicit sites on the Internet to protect children. Congress passed the Communications Decency Act of 1996 and the Child Online Protection Act of 1998. Several courts, however, ruled the acts unconstitutional.
For More Information
Besharov, Douglas J. Recognizing Child Abuse: A Guide for the Concerned. New York: Free Press, 1990.
Bianchi, Anne. Understanding the Law: A Teen Guide to Family Court and Minors' Rights. New York: Rosen, 2000.
Fabricant, Michael. Juveniles in the Family Courts. Lexington, MA: Lexington Books, 1983.
Helfer, Mary E., Ruth S. Kempe, and Richard D. Krugman, eds. The Battered Child. 5th ed. Chicago, IL: University of Chicago Press, 1997.
Mnookan, Robert H., and D. Kelly Weisberg. Child, Family, and State: Problems and Materials on Children and the Law. Gaithersburg, MD: Aspen Law and Business, 2000.
Ramsey, Sarah H., and Douglas E. Adams. Children and the Law in a Nutshell. 2nd ed. St. Paul, MN: Thomson/West, 2003.
Sagaturn, Inger, and Leonard Edwards. Child Abuse and the Legal System. Chicago, IL: Nelson-Hall Publishers, 1995.
"National Clearinghouse on Child Abuse and Neglect Information." U.S. Department of Health and Human Services Administration for Children and Families.http://nccanch.acf.hhs.gov/ (accessed on August 20, 2004).
"What is Abuse?" ChildhelpUSA®.http://www.childhelpusa.org/abuseinfo_definitions.htm (accessed on September 2, 2004).
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.
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
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.
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
Sections within this essay:Background
Before the Twentieth Century
The Fair Labor Standards Act (FLSA)
Children's Rights Violations in the United States
Child Labor Violations
Benefits of Joint Custody
Children as Detainees
Convention on the Rights of the Child
Amnesty International USA
Children's Rights Council
Human Rights Watch
United Nations Children's Fund (UNICEF)
United States Department of Justice, Civil Rights Division
When people in the United States think of children's rights they usually think of children in third world countries who are victims of abusive child labor practices or insurmountable poverty. They may not realize that the rights of children are violated in the United States as well. Even though child labor laws were passed decades ago prohibiting employment of underage youngsters, pockets of oppressive child labor exist, literally, on American soil; child farm laborers work long hours in squalid conditions and often receive half the standard minimum wage. And although numerous studies show that children do better when two parents are involved their upbringing, many custody laws make it extremely difficult for non-custodial parents to spend quality time with their children.
To be sure, the United States is still better than most countries when it comes to how children are treated. Yet children's rights is a topic that few people know much about. In fact, although many people know that the United Nations Convention on the Rights of the Child was formulated in 1989, they are probably unaware that the United States is one of two countries (the other is Somalia) that have not ratified the Convention. The U.S. government has given what it believes are sound reasons for not having ratified the Convention and repeatedly has affirmed its commitment to children's rights in the United States and abroad. Yet there is no question that some children do fall into the cracks, and others' problems are unwisely minimized.
It was not uncommon for children to be exploited before the 1930s. Children routinely worked in hazardous conditions in mills, factories, and sweatshops, and on farms. They might begin working before they had reached their tenth birthday, and they received little in the way of wages. Labor laws did not exist to protect children or adults, but children were often subject to more exploitative conditions because they were easier to manipulate.
The plight of small children did lead to the enactment of some laws, and the federal government tried in 1918 and agin in 1922, to enact national child labor laws. Both times, the effort was struck down by the U.S. Supreme Court, which ruled that it was up to the individual states to enact child labor legislation.
In 1938, partly in response to the Great Depression, Congress passed the Fair Labor Standards Act (FLSA). This law protected workers from long hours and unfair pay by establishing a 40-hour work week and a minimum wage. It also protected children from exploitation by establishing that they would have to be at least 16 to work in most nonagricultural industries. Younger children could still work certain jobs provided the hours and wages were fair. (It was still possible, in other words, for children to get a newspaper route.) FLSA was challenged in the courts soon after its passage but its constitutionality was upheld by the U.S. Supreme Court in 1941.
Although the United States does not have the gruesome record of children's rights violations that other countries have, it is not free of violations. Some are more subtle than others, but they do exist. Human rights groups monitor alleged instances of violations and work to educate the public and the government with the goal of correcting the problem.
FLSA protects, among other groups, child laborers. When it was enacted, farming was primarily a family activity, and it was understood that children would help on the family farm. Thus, the restrictions on agricultural work are much less stringent. By the end of the twentieth century, the number of family farms had dwindled, and most farming was done on large commercial establishments. But the lax restrictions remained, and farm conglomerates took advantage of this.
Under FLSA, no child under the age of 13 can work in a nonagricultural setting, and children of 14 and 15 can work but only for a set number of hours each day. For children working on a farm, the situation is quite different. Children can go to work in the fields as young as nine years old in some states, as long as they have signed parental consent.
Even with the relaxed standards for agricultural work, children are often overworked, are expected to work during what would be school hours, and are paid far less than what is legally required. A report issued in 2000 by Human Rights Watch noted that children under the age of 16 are often required to put in several hours before the school day begins; during the summer months they may work 12-hour days.
The dangers of agricultural work are surprisingly many, and for minors these dangers are even more troubling. Agricultural workers can be exposed to pesticides and other chemicals. They may be sent to work in oppressive heat but without adequate water to keep from becoming dehydrated. Often, they work with heavy or dangerous equipment—equipment that children often have little experience with. Because they work long hours, often having to rise before dawn to begin their work, lack of sleep is a major problem. For children, this is not only more dangerous, it also curtails their ability to succeed in school. Injury is common; children can fall or have accidents with heavy equipment or sharp objects.
It is important to remember that many adult farm workers are also exploited, forced to work long hours for little pay. Often, families are so poor and desperate that they feel compelled to give their young children permission to work on the farm, thus bringing in a small but needed amount of extra money.
Organizations such as Human Rights Watch have urged the U.S. government to revise FLSA to offer additional protection to minor children working on farms, and to ensure that farms are more careful about whom they hire and also more diligent about improving working conditions and wages.
Divorce was less common before 1970 than it was by the end of the twentieth century, but children whose parents divorced were likely to be placed in the custody of one parent. The other parent might get visitation rights, but these were usually limited. For children whose parents are both loving and responsible but no longer married to each other, this can be emotionally devastating.
The concept of joint custody was developed in the early 1970s to redress this imbalance. In 1973, Indiana passed the first state joint custody statute in the United States. As of 2002, all states have a joint custody statute on the books. There are two types of joint custody. In Joint legal custody both parents share decision-making responsibility. In Joint physical custody children spend almost an equal amount of time with each parent. Unfortunately, joint custody is still not particularly common. In some cases, of course, there are mitigating circumstances. One parent may have abandoned the family or may have verbally, physically, or even sexually abused the children in question. But for the average parent, who wants what is best for the child but is no longer able to see the child except for brief visits, the issue is one of fairness to that parent as well as the child. The majority of non-custodial parents are fathers.
According to statistics released by the U.S. Department of Health and Human Services in 1999, children who do not live with both parents are twice as likely to drop out of school, twice as likely to end up in jail, and four times as likely to need help for behavioral or emotional problems. Organizations such as the Children's Rights Council (CRC) raised the level of awareness on this issue to the point that joint custody, both legal and physical, became more common.
Illegal aliens who try to enter the United States may be detained and deported. This is true whether the aliens are adults or children. In 2000, nearly 4,700 children were detained by the U.S. Immigration and Naturalization Service (INS). Children are detained by INS after being picked up at U.S. borders without a parent or guardian and without proper documentation. The issue with these children is not that they are stopped from entering the United States illegally, but that they are held in such facilities as juvenile and county jails. Moreover, they face deportation, often to countries where they may be persecuted. They have no right to paid legal counsel. Reports that some who are detained in jails are mistreated has led human rights organizations to call for investigations.
In 2001 U.S. Senator Dianne Feinstein introduced the Unaccompanied Alien Child Protection Act, which would establish an Office of Children's Service at the U.S. Department of Justice. This office would be in charge of ensuring that children are treated humanely while in custody and that decisions on their future would be made based on their shortand long-term needs. It would also provide for legal counsel and guardians, as necessary, to be appointed to represent the children's interests.
In an effort to create a universally accepted set of children's rights, the United Nations General Assembly adopted the Convention on the Rights of the Child in November 1989. This document promises children the basic human rights of life and liberty, as well as access to education and health care. It also calls for protection against discrimination and abuse, protection from economic exploitation, and protection against torture.
While children's rights have become more visible since then, there are still many instances around the world of children's rights violations.
The United States did sign the Convention in 1995 but it was never submitted to the Senate for ratification. Although the government has stated that it has no intention of ratifying the Convention, it has consistently reaffirmed its commitment to children's rights.
Among the reason the United States has failed to ratify the Convention is the fact that the Convention clearly states that anyone under the age of 18 is a child. The U.S. government has reservations about how that would affect matters when a 16- or 17-year old commits a crime; currently, in certain instances that child can be tried as an adult. Also, the United States Government says that many of the declarations included in the document are not issues for which the federal government is in charge. For example, education in the United States is controlled by the states, not the federal government.
Whether the United States eventually ratifies the Convention, it still does maintain an enviable record of honoring most children's rights. Human rights groups are convinced that the United States can and should do more, and they continue to make their points of view known in the United States and abroad.
The Child Advocacy Handbook Fernandez, Happy Craven, Pilgrim Press, 1980.
Children's Rights: A Reference Handbook Edmonds, Beverly C., and William R. Fernekes, ABC-CLIO, 1996.
Children's Rights in the United States: In Search of a National Policy Walker, Nancy E., Catherine M. Brooks, and Lawrence S. Wrightsman, Sage Publications, 1999.
The Children's Rights Movement: A History of Advocacy and Protection Hawes, Joseph M., Twayne Publishers, 1991.
What Are My Rights? Ninety-Five Questions and Answers about Teens and the Law Jacobs, Thomas A., Free Spirit Publications, 1997.
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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.
The law of childhood is complex, but as a general legal proposition, a child is someone who has not yet reached the age of civil majority. Each state has the authority to determine the age of majority for its own residents, and in most states that age is now eighteen. Prior to 1971, the age of majority was typically twenty-one, but after the ratification of the twenty-sixth amendment, which gave eighteen-year-olds the right to vote in federal elections, most states lowered the age of majority, as well as the voting age for state elections.
In general, children have less liberty than adults and are less often held accountable for their actions. Parents have legal power to make a wide range of decisions for the child, although they are held responsible by the state for the child's care and support. Children have a special power to avoid contractual obligations but are not normally entitled to their own earnings and cannot manage their own property. Moreover, persons younger than certain statutory limits are not allowed to vote, hold public office, work in various occupations, drive a car, buy liquor, or be sold certain kinds of reading material, quite apart from what either they or their parents may wish.
Although a variety of civic and personal rights accrue at the age of majority, rights to engage in various "adult" activities may occur either before or after the age of eighteen. For example, many states restrict the legal access of nineteen-and twenty-year-olds to alcoholic beverages. On the other hand, most states permit sixteen-and seventeen-year-olds to secure licenses to drive automobiles. State child labor laws typically permit young people who are sixteen or seventeen to work, particularly outside of school hours, although federal law prohibits the employment of children under eighteen in hazardous occupations. A minor who is self-supporting and living away from home may, through emancipation, obtain a broad range of adult rights.
When advocates speak of children's rights, they may have in mind either of two quite contradictory notions. One notion focuses on children's basic needs, and the obligations to satisfy those needs. The other focuses on autonomy and choice.
At times, the word "right" is used to describe the duties of others—typically parents or state officials—to satisfy what are seen as a child's basic needs. Thus, claims are made that a child has or should have a legal right to education, adequate food and shelter, and even love, affection, discipline, and guidance. The federal Constitution has not been interpreted to give a child a substantive right to adequate education or care, although state law sometimes creates such duties. For example, every state provides for free public education, typically through high school, and many state constitutions require as much. Although the Supreme Court decided in san antonio independent school district v. rodriguez (1973) that education is not a "fundamental" right, at least for purposes of requiring strict scrutiny under the equal protection clause, the Court acknowledged in brown v. board of education (1954) that education is "perhaps the most important function of state and local governments." There is no constitutional right to parental love, but opinions such as pierce v. society of sisters (1925) have suggested that children as well as parents have an interest of constitutional dimension in preserving the parent-child relationship. State child-neglect statutes do impose on parents an obligation to provide adequate custodial care. In all events, a child's "right" to such things as an education or minimally adequate care has little to do with the protection of choice on the part of a particular child. A judge usually does not ask a physically abused child whether she wants to remain with her parents when the responsible authorities believe they cannot protect her from further harm if she remains at home. Compulsory education laws and child labor laws do not give an unhappy eleven-yearold child the legal right to pursue an education by dropping out of school and taking a job.
A second, very different, notion of "children's rights" emphasizes autonomy, choice, and liberty. Claims asserting this sort of right have arisen in a variety of contexts: procedural claims in juvenile proceedings and in schools (see goss v. lopez) ; choices about abortion or birth control; access to reading material (see ginsberg v. new york) ; and involvement in political protests (see tinker v. des moines school district). Usually the challenge is to some form of state paternalism; but sometimes the minor's claim involves the assertion that he should have the "right" to act independently of his parents. Because the liberty of minors is much more restricted than that of adults, reformers have sometimes asserted that adolescents should have the right to adult status, at least in particular settings. A few have even suggested a children's liberation movement to end the double standard of morals and behavior for adults and children.
The definition of "children's rights" necessarily involves the allocation of power and responsibility among the child, the family, and the state. Taking contemporary constitutional doctrine at face value, three basic principles bear on this allocation. The first principle concerns the children themselves, and the notion that as individuals they have constitutional rights. The Supreme Court declared in in re gault (1967), the seminal children's rights case, "whatever may be their precise impact, neither the fourteenth amendment nor the bill of rights is for adults alone."
The second principle concerns parents and the notion that parents have primary authority over the child. Children are part of families, and our traditions emphasize the primacy of the parental role in child-rearing. The rights of children cannot be defined without reference to their parents. The Court has suggested that parental authority also has a constitutional dimension: the state may not intrude too deeply into the parent-child relationship. Drawing on this principle, the Court held in wisconsin v. yoder (1972) that Wisconsin could not compel children to attend public schools when their old-order Amish parents believed that public schooling interfered with their raising of their children as their religion dictates. Nor may a state require all children to attend public school when there are private schools that meet legitimate regulatory standards.
The third principle concerns the state. It suggests that the state, in the exercise of its parens patriae power, has a special responsibility to protect children, even from their parents. The state's interest in protecting children has frequently been characterized as "compelling" and has been drawn on to justify a variety of child protective measures that constrain the liberty of parents and children alike. "Parents may be free," declared the Supreme Court in prince v. massachusetts (1944), "to become martyrs themselves. But it does not follow that they are free, under free and identical circumstances, to make martyrs of their children before they reach the age of full and legal discretion when they can make that choice for themselves."
Any one of these three principles, if taken very far, cuts deeply into the others. For example, to the extent that children, as individuals, are given autonomy rights, limits are necessarily imposed on parental rights to control their behavior or socialization. Recognition of child autonomy also limits the state's right to constrain a child's conduct in circumstances where adult conduct could not be similarly constrained. Some rights of child autonomy would disable the state from having special protective legislation for children. Broad interpretation of the state's parens patriae power to intervene to protect children necessarily will diminish both the parental role in child-rearing and the child's role in decision making. Similarly, an expansive interpretation of parents' rights to control and govern their children necessarily limits the state's ability to protect children, or to ensure child autonomy.
The Supreme Court's decisions concerning children's rights evidence these tensions. For example, the Tinker decision, emphasizing child autonomy, declared that children have First Amendment rights to engage in peaceful political protest within the schools. On the other hand, the Ginsberg decision, emphasizing state protection of children, determined that the state could criminally punish the sale to minors of sexually explicit materials that an adult would have a constitutional right to receive. (See obscenity.) In its decisions concerning juvenile delinquency proceedings, the Court has extended a broad range of procedural rights to minors, and yet also determined that a juvenile court need not provide an accused young person with trial by jury. In parham v. j. r. (1979) the court held that due process does not require a hearing before the commitment of a minor by a parent to a state mental hospital. similarly, although thePierce and Yoder opinions emphasized the primacy of the parental role in child-rearing, Prince, in enforcing a child labor law, emphasized the state's parens patriae obligation to protect children.
The Supreme Court's decisions involving the abortion rights of minors suggest that a state may not give parents an absolute "veto" over a pregnant minor's decision to have an abortion (planned parenthood of central missouri v. danforth, 1976), but may require parental notification, at least for younger pregnant teenagers still living at home (H. L. v. Matheson, 1981). And in Planned Parenthood v. Ashcroft (1983) the Court upheld a state law requiring either parental or judicial consent to a minor's abortion; under the law the court must approve the abortion if the minor is sufficiently mature to make the abortion decision, or, alternatively, if the abortion is in the minor's best interests.
In sum, the Constitution has not been interpreted to prohibit the state from treating children differently from adults. Because children often lack adult capacity and maturity and need protection, and because of the special relationship of children to their families, giving children the same rights and obligations as adults would often do them a substantial disservice. To assume adult roles, children need to be socialized. The Constitution does not prohibit the use of state or parental coercion in this task of socialization. But, because ours is a society where adults are socialized for autonomous choice, there are necessarily some limits, even for children. In determining the contour of children's constitutional rights, then, the Supreme Court appears to be seeking to recognize the moral autonomy of children as individuals without abandoning children to their rights.
Robert H. Mnookin
Hafen, Bruce C. 1976 Children's Liberation and the New Egalitarianism: Some Reservations about Abandoning Youth to Their "Rights." Brigham Young University Law Review 1976:605–658.
Mnookin, Robert H. 1978 Child, Family and State. Boston: Little, Brown.
——, ed. 1985 In the Interest of Children. New York: W. H. Freeman & Co.
Teitelbaum, Lee E. 1980 Foreword: The Meaning of Rights of Children. New Mexico Law Review 10:235–253.
Wald, Michael S. 1979 Children's Rights: A Framework for Analysis. University of California, Davis, Law Review 12: 255–282.
Youth Law Center 1982 Legal Rights of Children in the United States of America. Columbia Human Rights Law Review 13:675–743.
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.
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. 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.
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.
In 1924 the League of Nations adopted a Declaration of the Rights of the Child. It was not legally binding, but set forth principles that marked a shift in legal and cultural understandings of children. Children in many societies had, for centuries, been viewed as little more than their fathers' property. In the nineteenth and early twentieth centuries, long working hours under hazardous conditions were the lot of millions of children in industrializing nations. Problems of domestic physical, sexual, or psychological child abuse were absent from public discussion.
Since the 1950s children's rights have attracted greater attention. In 1959 a second Declaration of the Rights of the Child was adopted, this time by the United Nations (UN) General Assembly. Like the 1924 Declaration, it was not legally binding, but was more detailed in content, signaling further recognition of children as rights holders under international law. In 1989, the General Assembly adopted the Convention on the Rights of the Child. The Convention is a full-fledged treaty; once a state formally becomes a party to it, that state is
bound by its provisions. As of 2004 over 190 states had become parties to the Convention. A handful of others, notably the United States, have signed the Convention, thus endorsing its general aims, but have not taken the further step of becoming parties to it. That reluctance need not leave children in such countries without rights. The United States, for example, has any number of domestic laws and procedures protecting children (much of it at state and local levels), although many activists believe that further progress could be made. The countries with the best records of protecting children have done so largely through their own internal legal systems, without great reliance upon, or pressure from, international organizations. The 1924 and 1959 Declarations and the 1989 Convention nevertheless provide useful barometers of changing attitudes in many countries.
Other international documents set forth children's rights in more specific situations, such as armed conflict, juvenile detention, work, or education. Taken as a whole, such documents form a detailed corpus of rights. Once those rights have been recognized widely enough to become part of general, or customary, international law, they may be found to be binding even upon states that are not parties to the Convention. In the view of some experts, the high number of nation states endorsing children's rights documents supports the view that rules protecting children's core needs can now be considered part of customary international law.
Such developments are encouraging, yet millions of children on all continents continue to suffer brutality, slavery, poverty, malnutrition, disease, forced prostitution, genital mutilation, honor killings, poor education, and physical and emotional abuse. The 1989 Convention established a Committee on the Rights of the Child, charged with monitoring the progress made by parties to the Convention. The Committee has published candid criticisms of state violations. However, it can do little more. It has no judicial power. There is no court, police force, or prison to prevent or punish violations. Even in its limited function of issuing reports on state progress, the Committee can expect little cooperation from many offending nations. As with human rights law generally, offending states often adhere to norms on paper out of sheer political expediency, and not through any deep respect for human rights. Some states cite findings against them as grounds for insisting on greater development aid, arguing that violations can only be stopped when the overall level of wealth in society attains a satisfactory level. Children's rights then become tools in a broader political struggle, rather than ends in themselves.
Children's rights gather together a variety of problems that, in other branches of human rights law, are sometimes treated separately. "Classic" human rights, rooted in an older Western liberal tradition, include rights such as free expression, freedom of religion, due process of law, equal protection, and freedom from torture or cruel or degrading treatment. Those civil rights and liberties are commonly distinguished from more recent concepts of social and economic rights, such as rights to minimum levels of food, shelter, clothing, health care or education. Even for adults, particularly those living in poverty, distinctions between those two sets of rights can seem unjustified. For children, any distinction between those two classes of rights becomes all the more questionable. Rights to economic development, or rights of equitable access to natural resources, have been proposed to address such problems, but raise political and economic controversies of their own.
In order to meet such pressing concerns, international documents governing the rights of the child might have been cast as minimal statements, limited to the concerns of the neediest children. In fact, just the opposite has occurred. The 1989 Convention seeks to guarantee individual freedom, autonomy and personal development for all children. That ambition raises further problems. Article 13(1), for example, guarantees freedom of expression to every child, which is defined to "include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice." The Convention makes clear that such rights may not extend to children as fully as they extend to adults, and that the views of parents and guardians must also be taken into account. Nevertheless, there are many societies in which even adults enjoy little freedom of expression. In view of cross-cultural differences in attitudes toward children, it is difficult to guess how much freedom such a norm can guarantee.
Beyond the specific provisions of the Convention, more general questions arise about the vision of the child that it assumes. For example, research has pointed to issues of sexual identity as particularly thorny ones for human rights. Sexual identity is widely seen as having vast implications for individual development. Violence, repression, or ostracism arising from a minority sexual identity can have devastating, sometimes homicidal or suicidal, consequences for children. Much of the scientific community believes that certain core foundations of sexual identity are either inborn or fixed at a young age. Those facts would suggest that minority sexual identities should be protected, yet many states and cultures continue to voice fierce opposition to all attempts to promote greater acceptance. Activists find themselves torn between risking the gains already made for children's rights by losing credibility with offending states, and overlooking children who may need protection.
Children's rights are difficult to separate from women's rights, as women continue to be primary caretakers. Where women's rights are not respected, their children's rights may also be at risk. In some instances, the entire arena of family law comes into play. Domestic violence or collapse, including parental separation or divorce, involves the rights of parents as well as of children, yet children's best interests are notoriously difficult to promote in such circumstances.
The twentieth century witnessed undeniable changes in attitudes toward children, including a willingness to treat them as individuals worthy of basic freedoms and opportunities. At the same time, war, poverty, social upheaval, mass migrations, and the problems of industrialization have continued to claim children as their victims. It is unlikely that children's lives will show improvement until their broader social, political and economic problems can be addressed.
See also: Women's Rights.
Children's Rights. <http://www.childrensrights.org>.
"Children's Rights." Human Rights Watch. <http://hrw.org/children>.
Detrick, Sharon, ed. The UN Convention on the Rights of the Child—A Guide to the "Travaux Préparatoires." Boston: M. Nijhoff Publishers, 1992.
Detrick, Sharon, ed. Commentary on the United Nations Convention on the Rights of the Child. The Hague, The Netherlands: Kluwer, 1999.
Fottrell, Deirdre, ed. Revisiting Children's Rights: 10 Years of the UN Convention on the Rights of the Child. London: Brill, 2000.
Heinze, Eric, ed. Of Innocence and Autonomy: Children, Sex, and Human Rights. Aldershot, UK: Ashgate, 2000.
James, Alison, et al. Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood. London: Routledge, 1997.
James, Alison, et al. Theorizing Childhood. London: Polity, 1998.
Save the Children. <http://www.savethechildren.org>.
University of Minnesota Human Rights Library. <http://www1.umn.edu/humanrts/instree/auok.htm>.
Van Bueren, Geraldine. The International Law of the Rights of the Child. Dordrecht, The Netherlands: Kluwer, 1995.
The United Nations Convention on the Rights of the Child (UNCRC) is the clearest and most comprehensive expression of what the world community wants for its children. It arose in the 1970s as a reaction to the weakening global humanitarian response to children. The United Nations unanimously endorsed the convention on November 20, 1989 and it became international law in 1990.
The UNCRC is an international human rights treaty, which focuses on the rights of the child from a developmental-ecological perspective. It assumes that the child's overall development is a function of a number of factors (psychological, social, educational, and cultural) and contexts (home, school, community, and country). The convention's developmental framework represents the latest thinking in international child-related policies.
The UNCRC is comprised of fifty-four articles that seek to safeguard and uphold children's minimal health, civil, humanitarian, and family rights. It can be divided into three main parts: key principles, specific rights, and ways in which the convention should be monitored. Protection of children against discrimination, abuse and neglect, and armed conflict are issues outlined in Articles 2, 19, and 38, respectively. Parent-child relationships are defined in several articles, including Articles 5, 9, and 10. The treaty also calls on states and countries to ensure survival of children to the maximum extent (health care, food, and clean water in Article 24; education in Articles, 28 and 29).
The UNCRC uses the principle of "a child's best interest" as a standard measuring tool for policy, thereby defining children not as objects, but as individuals with human rights. Consequently, the UNCRC is an important advocacy tool for children worldwide.
See also:DOMESTIC VIOLENCE
Detrick, S.A Commentary on the United Nations Convention on the Rights of the Child. The Hague: Kluwer Law International, 1999.
Muscroft, S., ed. Children';s Rights: Reality or Rhetoric? London: International Save the Children Alliance, 1999.
Rebello, Pia, L. Cummings, and M. Gardinier. "The United Nations Convention on the Rights of the Child: A Call to Child Development Professionals around the World." Paper presented at the Biennial meeting of the Society for Research in Child Development, Indianapolis, IN, April 1995.
United Nations Children's Fund (UNICEF) in the United Nations Convention on the Rights of the Child [web site]. Available from http://www.unicef.org/crc; INTERNET.