What Is Right for Children?

The Competing Paradigms of Religion and Human Rights

Karen Worthington, Martha Albertson Fineman, Karen Worthington, Martha Albertson Fineman, Karen Worthington

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780754674191
• eBook ISBN: 9781134760855
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Combining feminist legal theory with international human rights concepts, this book examines the presence, participation and treatment of children in a variety of contexts. Specifically, through comparing legal developments in the US with legal developments in countries where the views that children are separate from their families and potentially in need of state protection are more widely accepted. The authors address the role of religion in shaping attitudes about parental rights in the US, with particular emphasis upon the fundamentalist belief in natural lines of familial authority. Such beliefs have provoked powerful resistance in the US to human rights approaches that view the child as an independent rights holder and the state as obligated to proved services and protections that are distinctly child-centred. Calling for a rebalancing of relationships within the US family, to become more consistent with emerging human rights norms, this collection contains both theoretical debates about and practical approaches to granting positive rights to children.

Part I Children's Rights as Human Rights

Introduction

As the chapters in this section discuss, the concept of rights for children, even the most basic human rights, is complex. Because children are by their very nature and physiology dependent beings, discussions of rights for children require consideration of how those rights can be exercised and how this might undermine or interfere with the rights of those who have authority over and responsibility for children.

The authors in this section explore some of the public and political conversations about human rights, assessing whether the provision of basic human rights to children would destroy the American family as we know it (or as it is envisioned by conservative Christian groups). The authors provide a rich background for assessing the claims of and resistance to children’s rights.

Barbara Bennett Woodhouse begins this section with a discussion of how the United Nations Convention on the Rights of the Child (CRC) aligns with American values and laws. Much of the opposition to the CRC in the United States relates to perceived infringements on parents’ rights. Woodhouse investigates the merits of this objection and asserts that the CRC strengthens rather than undermines the role of parents and families. In her analysis, the anti-CRC rhetoric does not reflect the actual provisions of the CRC, which she argues need not be viewed as antagonistic to parents’ rights in regard to their children.

Barbara Stark gives us the other side, introducing us to the threats to the family inherent in the CRC as they are perceived by certain Christian groups. She considers the ways in which religious groups have claimed and reshaped discourse around human rights and children’s rights. Stark places this in historical context by providing an overview of past campaigns for human rights and civil rights in the US. She compares the political and cultural shifts in thinking associated with the human rights campaign after World War II and the domestic civil rights movement of the 1960s with the current campaign for children’s rights. She concludes that the contemporary rhetoric casting God and family as the victims of a rights movement was not possible in other rights’ struggles, which were more sympathetically embraced by the majority of Americans.

Linda McClain provides some insight into the extent to which some conservative Christian groups are impacting US public policy. She analyzes and compares the approaches of some American conservative Christian religious groups to children and the family, expanding on the ways in which they perceive the threats posed by a human rights paradigm. McClain challenges our current notion of the “ideal family” and the concept of “family values” that underlies that idea. Drawing on the importance of contemporary American political and constitutional values, such as equality, as well as international human rights doctrines, she then contrasts the rights vision with different religious groups’ concepts of child, family, and the State. The question she poses is whether these differences in conceptualization can ever be reconciled.

Mary Anne Case presents her argument as a feminist fundamentalist by adapting the language used to describe religious positions in order to highlight her commitment, and, indeed, the US constitutional obligation, to sex equality. Although Case illustrates this constitutional obligation in a variety of cases before the Supreme Court, she notes that those cases involving children and religion in the family are not so clear in supporting sex equality. In fact, she argues that judges have been reticent to deny parents the right to socialize their children, even if such socialization encourages discrimination based on sex and particularly if the parents’ claims are based on religious convictions. Case’s chapter brings us back to the first chapter in the section, reminding us of the intimate relationship between women’s rights and children’s rights.

1 The United Nations Convention on the Rights of the Child: Empowering Parents to Protect Their Children's Rights¹

Barbara Bennett Woodhouse and Kathryn A. Johnson

DOI: 10.4324/9781315547442-1

1 This chapter appeared in The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification by Jonathan Todres, Mark E. Wojcik and Cris R. Revaz (2006), and is reprinted by permission of Koninklijke Brill NV.

Responding to the horrors of child abuse, the deaths of children from war and conflict, and children suffering from disease and hunger, the nations of the world agreed to draft a document addressing the special dangers children face and articulating their rights as young humans. On November 20, 1989, the United Nations General Assembly adopted the Convention on the Rights of the Child (CRC), which guarantees children individual human rights while strengthening the role of parents and the family. The overall principles of the CRC recognize the child as a person with evolving capacities. The seven rights set out by the CRC have been described as falling under four core areas: non-discrimination; the best interests of the child; the right to life, survival, and development; and the views of the child. Article 2 of the CRC spells out the non-discrimination rights. State Parties must ensure that all children within their jurisdiction enjoy their right to live without suffering discrimination. This applies to every child, "irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status" (Article 2).

When governments make decisions that affect children, the best interests of children must be a primary consideration as defined in Article 3 of the CRC. This principle applies to decisions by courts of law, administrative authorities, legislative bodies and both public and private social-welfare institutions (Van Bueren, 1995). While there is no concise definition of the "best interests of the child." persons involved in the child advocacy field evaluate different factors to determine what is best for the child overall. Those factors include physical safety, emotional wellbeing, and a child's healthy growth and development (Woodhouse, 1999).

Article 6 of the CRC relates to the right to survival and development, which governments must ensure "to the maximum extent possible." The term"development" in this context is interpreted in a broad sense, referring to the physical, mental, emotional, cognitive, social, and cultural development of the child. Developmental rights include the rights to nurture, love, food, health care and education. The State has a duty to support parents' responsibilities in these contexts by providing appropriate economic and social supports. Survival rights include the rights to life and life-protective interventions (Van Bueren, 1995).

The participatory views of the child are also very important and are detailed in Article 12 of the CRC. Children have a right to participate in all matters affecting them, and their views should be given due weight "in accordance with the age and maturity of the child" (Article 12). In short, children have the right to be heard and have their views taken seriously, and the same Article confers on the child the right to be consulted in matters that affect his or her well-being.

Since its adoption, 192 countries have ratified the CRC (United Nations Children's Fund [UNICEF] 2006), and only two countries have not. Those two countries are the United States and Somalia. Somalia cannot ratify the treaty because it lacks a formal government due to civil strife. The US fully participated in the drafting process, and President Clinton signed the CRC in 1995, but the Bush Administration failed to bring the CRC before the Senate for a vote on ratification.

Meanwhile, the US ratified the two Optional Protocols to the CRC on December 23, 2002 (subject to certain reservations, understandings, and declarations). The first Optional Protocol deals with children in armed conflict. The Protocol states that the minimum age for compulsory recruitment into a State Party's armed forces is 18. Also, the State Parties must take "all feasible measures" to ensure that members of their armed forces who are under 18 years old do not take a "direct part" in hostilities (Article 1). The second Optional Protocol deals with the sale of children, child pornography, and child prostitution. The Protocol requires State Parties to protect children up to the age of 18 by treating the exploitations of children as criminal acts that merit serious punishment. The ratification of these Protocols suggests that the US can ratify the CRC without compromising sovereignty or robbing parents of their roles and duties. Additionally, it demonstrates that the US is finally addressing the human rights abuses against children (Detrick, 1992).

Ratification of the CRC in the US would indeed provide an opportunity to focus on children's rights as we have on the rights of other groups. Ratification means considering children as persons with clear interests and individual voices. Around the world and increasingly here in the US, the CRC provides children and adults with a shared framework for thinking about rights for children. The CRC gives the world a "clear, coherent, and comprehensive" legal instrument devoted solely to children's rights as opposed to the "incomplete" and scattered provisions in the previous treaties (Detrick, 1992).

However, the Bush Administration's position on the CRC is best demonstrated by a US State Department statement:

It is misleading and inappropriate to use the Convention as a litmus test to measure a nation's commitment to children. As a non-party to the Convention, the United States does not accept obligations based on it, nor do we accept that it is the best or only framework for developing programs and policies to benefit children, (Free the Children, 2005)

The CRC and Traditional Family Values

Opponents believe the CRC will undermine parental authority, interfere with parents' ability to raise and discipline their children, and make the rights of children more important than the rights of parents. Nothing could be further from the truth. In reality, the CRC repeatedly refers to the importance of the parent-child relationship, places new obligations on parents through responsibilities owed to their children, and requires governments to respect the rights and duties of parents. Many existing US policies are already aligned with the CRC, and these policies do not interfere with parental rights but instead help parents protect their children from harm.

Another reason for US reluctance to ratify the CRC is a fear that the rights enumerated must translate into individual causes of action against the State. Traditionally, the US recognized civil and political rights (such as the rights to expression, assembly, and due process) but not economic, social, and cultural rights (such as the right to education, health care, and an adequate standard of living). The CRC includes both. But the economic, social, and cultural rights are qualified by language sufficiently broad to accommodate a wide range of approaches by nations of varying levels of economic development and with all kinds of political systems. While each child has a moral right under the CRC to health care and education, the methods adopted and the levels of care supplied will vary according to the circumstances and traditions of each nation. Americans, by definition assume that rights exist to be asserted in relation to someone or something that could potentially take the rights away. When Americans think of rights, they imagine a person who asserts his or her right to speak under the First Amendment or his or her right not to speak, after receiving a warning about the right not to incriminate oneself. Some critics assumed the CRC would give children the same rights against their parents that individuals have against their governments. It is a mistake to read children's rights in the CRC as rights against their parents. Parents rightfully occupy a special role within die CRC scheme, as protectors, not oppressors, of children. What the CRC does provide children (and their parents) is protection from the intrusion of government into their rights. Many nations agreed to observe basic human rights for their adult citizens and signed the United Nations Covenant on Civil and Political Rights (1976). This Covenant is consistent with the US Constitution's fundamental principle that citizens must be protected from government interference with basic human rights. The CRC extends this reasoning to children. The CRC aims to protect vulnerable children by providing a range of civil, political, economic, social, and cultural rights appropriate to children and youth, which the government agrees to uphold.

It is not possible to talk about children's rights without talking about parents' rights. Parents' rights play a central role in the concept of children's rights and vice versa. The CRC recognizes that to strengthen the rights of children, it is essential to strengthen the rights and responsibilities of parents. Children are not competent to function as adults, and the CRC does not suggest that they are. During the period of development from helpless infants to competent adults, children require the nurturing care and support of parents or guardians. Children do not exercise their rights in a vacuum, and they do not exercise their rights without parental supervision and guidance. For US parents confused or concerned about the intent of the CRC, it might be helpful to consider an analogy to a trust fund. Children often have savings accounts held in trust by their parent or guardian. The philosophy behind this is that the money belongs to the child but, because the child may not be mature enough to have control of these resources, that job falls to the responsible adult. The responsible parent or guardian is the steward of the child's property. Similarly, the CRC views parents as the stewards of their children's rights. To extend this analogy, the CRC acts to make a large deposit into the child's trust fund of rights. Instead of the parents having stewardship over a small savings account, they now have stewardship over a much more significant account. When a child's trust fund grows, the child is wealthier, but the parent is not poorer. The CRC adds to the rights guaranteed to children, but it does not diminish the rights guaranteed to their parents.

This concept is reflected in the CRC by identifying a developmental principle called "the evolving capacities of the child." which establishes that it is up to parents to provide "appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention" (Article 5). The CRC is explicit in its support of the role of parents and the family. Article 5 states that "States Parties shall respect the responsibilities, rights and duties of parents, or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child" (Article 5).

One area of the CRC that provokes controversy and opposition is the notion of children's participatory rights: the right to express their views freely in accordance with their age and maturity, the right to be represented in all judicial and administrative proceedings, and the right to be considered as persons with interests apart from their parents. However. Americans should realize that recognizing children's rights as stakeholders and citizens to participate in society and in legal proceedings is nothing new. Under existing laws and decisions, children have First Amendment rights to free speech and rights to a lawyer in a criminal case. Doctrines and procedures are tailored, however, to meet children's special circumstances as developing persons. Voting age limts are one example of ways in which children's and adults' rights are not equal. The CRC does not suddenly liberate children to subscribe to pornographic magazines or hijack classroom discussions with topics of their own choosing. Such extremes only undercut children's rights to nurture, education, and protection. The CRC certainly does not allow children to usurp the authority of parents. On the contrary, the CRC promotes the same principles implicitly supported by the Constitution and developed through judicial decisions.

Over 80 years ago, in Meyer v. Nebraska (1923), the Supreme Court recognized parents' rights to control and custody of their children and to raise them as they see fit as fundamental rights. In Ginsberg v. New York (1968), the Court wrote that "constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society" (p. 639). This realm includes family relationships, child rearing, and education. Parental authority is not absolute, and there are limitations on this right. If the parental decisions amount to abuse or neglect of the child, the parental right is no longer constitutionally protected. In the United States we have long accepted that chil...

Table of contents

• Cover Page
• Half Title Page
• Dedication
• Title Page
• Copyright Page
• Contents
• List of Contributors
• Acknowledgements
• Introduction What is Right for Children?
• Part I Children's Rights as Human Rights
• Part II Children in the United States: The Legal Context
• Part III Comparisons: Children within the Context of Human Rights
• Appendix
• Bibliography
• Index