International Child Law

Rajnaara Akhtar, Conrad Nyamutata, Elizabeth Faulkner

• Publisher: Routledge
• Year: 2020
• ISBN:
  9780429012426
• Edition: 4
• Topic: Education
• Subtopic: Education General

This book examines the rights of the child using the global framework of the United Nations International Convention on the Rights of the Child 1989. Analysing both public and private international legal aspects, this cross-disciplinary text promotes a holistic understanding of the ongoing development of child law, children's rights and the protection of the child. In-depth analyses of the following topic areas are included: Childhood in the digital age; Child labour; International parental child abduction; Inter-country adoption; Sexual exploitation; Children and armed conflict; and Indigenous children. These topics are contextualised with further chapters on the concept of childhood and children's rights, the international legal framework in which the Convention operates and a substantive chapter on the Convention itself.

This fourth edition has been updated and revised, including a new chapter dealing with issues arising from childhood in the age of unprecedented digital technological advancements; a crucial issue for childhood experiences in modern times. This edition also includes new case studies, recent legal developments in the field of international child law, and inclusion of broader scholarship to capture diverse views on international law and child law. The aim of this book is to provide the reader with an accessible, informed, critical and scholarly account of the international law framework relating to children.

Drawing on a range of legal and other disciplines, this book remains a valuable resource for those in the course of study and research in this area.

Chapter 1
Childhood and children’s rights

The international law relating to children is best understood by considering at the outset what we mean when we talk about ‘childhood’ and ‘children’s rights’. At first sight, these two concepts seem straightforward, but on closer examination they turn out to be contestable notions. ‘Childhood’ assumes some kind of understanding of what it means to be a child, and, by implication, an adult. ‘Children’s rights’ assumes a background framework of knowledge about ‘human rights’ of which children’s rights can be considered an integral part. To an extent, the project of international law relating to children is one which is predicated on the existence of a universally held definition of ‘child’,¹ and yet it is self-evident that ‘childhood’ is experienced very differently by groups of children even within the same nation state. Furthermore, the way in which we perceive childhood and children’s rights will have a highly significant bearing on how we view international child law and the international community’s approach to legal regulation and standard-setting in this area. This chapter seeks to introduce the reader to these two important concepts.

1 The UN Convention on the Rights of the Child (1989) defines the child thus: ‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.’

1.1 Childhood

The following sections include a brief overview of the historical, psychological, sociological and social policy perspectives on childhood. The study of childhood has become a truly multi-disciplinary activity. However, while the focus on childhood tends to be favoured within the academic community, research initiatives that are more highly linked to policy and specific projects have, since the 1990s, tended to concern themselves primarily with child protection (Ennew 2008). Indeed, there are many research centres dedicated to the study of childhood,² and the number of ‘childhood studies’ programmes in higher education has grown.

2 Numerous major UK universities host research centres focused on the study of children and childhood, including the University of Suffolk: www.uos.ac.uk/content/centre-for-study-children-childhood (accessed 20 February 2020), the University of Oxford: www.history.ox.ac.uk/centre-history-childhood (accessed 20 February 2020).

1.1.1 Historical perspectives

As one commentator has observed, ‘[f]or much of history children have not been of particular interest to academics or policy-makers’ (Kelly 2005: 375). However, Ariès’s (1962) work was the classic historical study of the notion of childhood and his analysis is often referred to in the literature as simply the ‘Ariès thesis’. Ariès examined the iconography in art and literature over several centuries to identify an emerging ‘discovery of childhood’. He suggested famously that ‘in mediaeval society the idea of childhood did not exist’. He stated that there had been no distinctive vocabulary of childhood, nor any distinct dress or games. He argued that infants below seven years old were recognised as physically vulnerable, but their parents were largely indifferent to them, probably because of the high levels of infant mortality. After seven years of age, the child was simply regarded as another (smaller) adult. By contrast, from about the fifteenth to the seventeenth century, Ariès suggested a transition had occurred in the prevalent notion of childhood: the child was perceived as a significant family member, to be nurtured and protected. Change started, first, in wealthy households where there were increasing concerns for the moral and educational development of children. Children were becoming creatures to be nurtured and reformed by a combination of rationality and discipline. Ariès reinforced his views by pointing to the historical development of education for the young and the establishment of the ‘child’ as a central figure in the appearance of the ‘family’, itself a newly developing institution emerging over the centuries. Ariès argued that these new attitudes to children were then transmitted to the bourgeois class where there was additionally concern for the health and hygiene of children as well as their education. The expansion of the school system brought with it a lengthening in the period of childhood.

Some later studies reinforced these views by examining the history of child-rearing practices. For example, Stone (1990) asserted that in earlier centuries high infant mortality had prompted a low level of affection for children by their parents/carers. In the eighteenth century a new, more affectionate style of child-rearing emerged and traditional practices such as wet-nursing, swaddling and excessive punishment declined. However, by the mid-nineteenth century a reaction, caused by the Methodist revival, had set in, whereby the child was perceived as naturally tending towards sinful behaviour and in need of correction by parents and other adults by means of stern discipline designed to break the will (and wilfulness) of a child. This reversion to a more authoritarian family type in turn gave way to a more permissive style in the later Victorian era.

Only in the closing decades of the Victorian period was there a gradual return to child-centredness and permissiveness caused by a variety of new influences – the decline of religiosity, women’s emancipation, family limitation and the new psychological theories of child development. These trends ultimately affected all social classes in the twentieth century, resulting in the small, modern family characterised by high concentration of affection, a decline in paternal authority, more ‘natural’ child-rearing practices and more democratic sharing of roles.

(Burnett 1983: 1)

Subsequent commentators have questioned Ariès’s thesis and methodology (Pol-lock 1983), and indeed some of his conclusions do not appear to be sufficiently supported by the evidence. In short, his work:

sparked off a whole series of strictly historical debates: on whether the mediaeval period did in fact have an awareness of childhood, on the key periods in ‘the discovery of childhood’, on the nature of parent – child relations at various periods, and on the role of the schools to name a few.

(Heywood 2001: 5)

Both Ariès and another historian, Lloyd De Mause, believed in essence that the further one went back in history the worse would be the level of treatment of children. Indeed, De Mause stated that ‘[t]he history of childhood is a nightmare from which we have only recently begun to awaken’ and that ‘[t]he further back in history one goes, the lower the level of child care, and the more likely children are to be killed, abandoned, beaten, terrorised, and sexually abused’ (De Mause 1976: 1–2).

Archard (1993), among others, has provided a carefully crafted deconstruction of Ariès’s influential thesis. He points not only to the weak evidential basis but also to Ariès’s ‘predisposition to interpret the past in the light of present-day attitudes, assumptions and concerns’. Furthermore, he argues that Ariès subscribes (wrongly) to a historical understanding of ‘modernity’ as a linear progression to moral enlightenment. Instead, Archard argues, one can employ a distinction between a ‘concept’ and a ‘conception’ to better analyse Ariès’s thesis. The argument, in brief, is that to have a ‘concept’ of childhood is to recognise that there is a distinction between children and adults. To have a ‘conception’ of childhood is a specification of what the distinguishing attributes are. Archard concludes that all societies at all times have had a concept of childhood, but there have been a number of different conceptions. Historically, we cannot be confident about the reliability of our knowledge in relation to these conceptions. He therefore concludes that Ariès’s thesis is flawed by what he refers to as an ‘ill judged leap’ from ‘concept’ to ‘conception’.

Archard also provides an interesting conceptual framework to accommodate the examination of different ‘conceptions’ of childhood. He introduces three elements to the notion of childhood: its ‘boundaries’, ‘dimensions’ and ‘divisions’. The boundary for childhood he defines as the point at which it ends. He argues that any particular society’s conception of this boundary may differ according to its culture. Conceptions of childhood frequently locate the relevant boundary in relation to cultural ‘rites of passage or initiation ceremonies which celebrate the end of childhood and beginning of adulthood’; according to Archard, ‘[t]hese are likely to be associated with permission to marry, departure from the parental home or assumption of the responsibility to provide for oneself’ (Archard 1993: 23).

Conceptions of childhood may also differ according to their ‘dimensions’. Archard suggested that a number of perspectives would render a distinction between children and adults; for example, moral, juridical, philosophical and political. Each society will have its own particular value system which may at any one time favour one or more of these perspectives. Sometimes a society sets the legal age of majority according to a view about one or more of these dimensions. A majority age need not necessarily be consistent with the ‘boundary’ implied by other dimensions. By way of illustration of this point, Archard points to the origins (in Europe) of the age of majority, which was fixed in the Middle Ages by the capacity of a young boy to bear arms and changed as armour became increasingly heavier and thus demanded greater strength to wear it (Archard 1993: 25). If, however, rationality is the key dimension, then the acquisition of reason is a better test of majority age. Similarly, in societies that focus on the overriding importance of sustaining and reproducing life, ‘the ability to work and bear offspring is a strikingly obvious mark of maturity’ (Archard 1993: 26).

Archard argues that conceptions of childhood will also depend on how its ‘divisions’ are ordered and managed. There are in most societies a number of sub-categories between birth and adulthood. Most cultures recognise a period of very early infancy where the child is particularly vulnerable and deserving of adult care; a point that is consistent with the findings of developmental psychology outlined in the following discussion. Some cultures attach importance to weaning; the point where close maternal care finishes. Some societies put particular significance on the point at which a child acquires speech. Roman law specified three age periods of childhood: infantia (child incapable of speech); tutela impuberes (pre-pubescent child requiring a tutor); and cura minores (post-pubescent young person requiring the care of a guardian prior to attaining majority).

At any rate, the notion of ‘adolescence’ or ‘youth’ in the modern conception of childhood is widely recognised as a period usually involving an apprenticeship for the roles to be required of adulthood. Indeed, the inclusion of the ‘middle-aged child’, that is, the post-infantile seven-year-old to the pre-adolescent 12-year-old, is arguably a key element of the modern conception of childhood. Archard (1993: 27) concluded that:

any conception of childhood will vary according to the ways in which its boundaries are set, its dimensions ordered and its divisions managed. This will determine how a culture thinks about the extent, nature and significance of childhood. The adoption of one conception rather than another will reflect prevailing general beliefs, assumptions and priorities. Is what matters to a society that a human can speak, be able to distinguish good from evil, exercise reason, learn and acquire knowledge, fend for itself, procreate, participate in running the society or work alongside its other members?

In an influential and controversial work, Pollock (1983) challenged what had become the orthodoxy of Ariès, De Mause and Stone. She argued that the experience of childhood was not as unremittingly gloomy as had been portrayed. Her study was based on her doctoral work which examined over 500 published diaries and autobiographies. She rebutted the notion that there were any fundamental changes in the way parents viewed or reared their children in the period 1500–1900: ‘[t]he texts reveal no significant change in the quality of parental care given to, or the amount of affection felt for infants for the period 1500–1900’ (Pollock 1983: 3).

The controversies in historical research about childhood are not made easier by the difficulties in locating reliable source materials. One commentator puts it thus:

Ideas about childhood in the past exist in plenitude; it is not so easy to find out about the lives of children. There are sources which can tell us about their numbers in relation to adults, their life expectancy, the ages at which they were likely to start work and leave home and so on, but those seeking to recapture the emotional quality of the lives of children in the past encounter formidable hurdles. The letters and diaries of parents seem to be one way of surmounting the hurdles, but they tend to be written only by the articulate and well-to-do, and in them our view of the child is mediated through the perceptions of the adult. Children themselves have sometimes left behind written materials, but too often what they write in their diaries tells us more about the genre of diary writing and the desires and expectations of adult readers than about the experience of being a child.

(Cunningham 2005: 2)

In essence, what emerges from the historical analyses is that the notion of childhood is a culturally transmitted idea that may have changed significantly over past centuries, though there is little consensus about the detail of how and why these changes in perception have occurred. At the least, this brief survey of the historical perspective of childhood ought to suggest that the aim of universal norm-creation underlying international human rights instruments, such as the United Nations Convention on the Rights of the Child,³ may not necessarily be consistent with the core notion of childhood prevalent ...