Routledge International Handbook of Children's Rights Studies

Wouter Vandenhole, Ellen Desmet, Didier Reynaert, Sara Lembrechts, Wouter Vandenhole, Ellen Desmet, Didier Reynaert, Sara Lembrechts

• Éditeur: Routledge
• Année: 2015
• ISBN:
  9781317669722
• Édition: 1
• Sujet: Law
• Sous-sujet: Law Theory & Practice

Since the adoption of the UN Convention on the Rights of the Child (1989) children's rights have assumed a central position in a wide variety of disciplines and policies.

This handbook offers an engaging overview of the contemporary research landscape for those people in the theory and practice of children's rights. The volume offers a multidisciplinary approach to children's rights, as well as key thematic issues in children's rights at the intersection of global and local concerns. The main approaches and topics within the volume are:

• Law, social work, and the sociology of childhood and anthropology

• Geography, childhood studies, gender studies and citizenship studies

• Participation, education and health

• Juvenile justice and alternative care

• Violence against children and female genital mutilation

• Child labour, working children and child poverty

• Migration, indigenous children and resource exploitation

The specially commissioned chapters have been written by renowned scholars and researchers and come together to provide a critical and invaluable guide to the challenges and dilemmas currently facing children's rights.

1

Introduction

A critical approach to children’s rights

Didier Reynaert, Ellen Desmet, Sara Lembrechts and Wouter Vandenhole

Over the last few decades, children’s rights have assumed a central position in a wide variety of disciplines and policies. More than 25 years after the adoption of the UN Convention on the Rights of the Child (CRC) in 1989, it is time to take stock of the achievements and challenges.

The volume consists of two parts, a disciplinary and a thematic one. Taken together, both parts seek to further children’s rights realization, not by downplaying key challenges, but by addressing them. The first part provides an insight into various (inter)disciplinary approaches to children’s rights, with contributions from law, history, social policy, educational sciences, childhood studies, sociology, social work, anthropology, geography, gender studies and citizenship studies. The second part takes a thematic entry point, disentangling a selection of children’s rights issues that are of particular relevance from a global perspective. Here, participation, education, health, juvenile justice, alternative care, violence, female genital mutilation, child labour and working children, migration, poverty, indigenous children and natural resource exploitation are addressed. A detailed introduction to each chapter is offered in the final section of this introduction.

This dual entry point of disciplinary approaches and thematic analyses helps to deepen the understanding of children’s rights. Both parts mutually enrich and reinforce each other: they are interconnected and complementary. The common thread ensuring coherence throughout the two parts and their respective chapters is the critical approach that is adopted. This critical approach, aspects of which are elaborated on hereinafter and revisited and consolidated in the conclusion, will help children’s rights scholarship to mature into critical children’s rights studies (see concluding Chapter 23), and to take a distance from children’s rights activism when needed.

The Handbook takes issue with the observation that ‘something seems to be going on’ in children’s rights scholarship. Several scholars have recently proposed new conceptualizations of children’s rights that reflect a shift from a top-down understanding towards a bottom-up approach of children’s rights, in parallel with a similar evolution in general human rights scholarship (Merry, 2010; De Feyter, 2007, 2011; de Gaay Fortman, 2011). Reflections on children’s rights in terms of ‘children’s rights from below’ (Liebel, 2012), ‘living rights’ (Hanson and Nieuwenhuys, 2013), ‘localizing children’s rights’ (Vandenhole, 2012) or a ‘lifeworld approach in children’s rights’ (Reynaert et al., 2011) are all grounded in a bottom-up approach to children’s rights. What unites these perspectives is their ‘contextual orientation’ that criticizes dominant paradigms in children’s rights research. These dominant paradigms understand children’s rights as an objective set of goals applicable for any context, and take the CRC as the key point of reference. Not only is such an approach blind to the social, economic and historical contexts in which children grow up, it also does not sufficiently take account of the diversity of interpretations and meanings that children’s rights can have. Nevertheless, the context-oriented approaches raise new questions and dilemmas, while simultaneously re-challenging ‘old’ ones. How far can a context-specific interpretation of the CRC go without violating children’s rights? How can different interpretations of children’s rights coexist, and how do they relate to more ‘traditional’ ideas of social justice and human dignity? And in what sense can the CRC be considered as an instrument for social change to address imbalanced power-relations, both locally and globally?

In what follows, we address four analytical puzzles that are at the core of this Handbook: definitions and understandings of children, childhood and children’s rights; a context-specific approach; disciplinary interactions; and an approach of critique. Next, we briefly introduce each chapter by summarizing its key contents and by flagging how it engages with the analytical puzzles developed below.

1. Understanding children’s rights

There are no universally accepted definitions of the concepts of children, childhood and children’s rights. In what follows, we explain how these notions have been defined by the editors for the purposes of this volume.

1.1. Children

The notion of ‘children’ is used to refer to a particular group in society, which is distinguished on the basis of its age. Who is considered a ‘child’ is not a given; it varies with social, economic and cultural circumstances. Article 1 of the CRC states: ‘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.’ The provision explains how the term ‘child’ is to be understood for the purposes of that treaty. It does not state that every person below 18 years equals a child as such. This is nonetheless how the concept of ‘children’ has become commonly defined, namely as all persons below eighteen, leading to an invisibility and even ‘infantilisation of adolescents’ (Abramson, 1996, p. 397; Cantwell, 2011).¹ It therefore seems more appropriate to talk about ‘children and young people’ when referring to the persons who come within the scope of the CRC. The application of the CRC to ‘young people’ or adolescents is moreover challenging. The text of the CRC is not always adapted to the needs and interest of adolescents, and there has been a lack of attention in the implementation of the CRC to this age group as well (Desmet, 2012).

Both the beginning and the end of childhood are contested terrain. Regarding the beginning of childhood, there is a debate on the extent to which children’s rights are or should be applicable to the unborn child (Joseph, 2009; Cornock and Montgomery, 2011). As concerns the end of childhood, neuroimaging research has found that the brain is only fully developed at the age of 25 (Johnson, Blum and Giedd, 2009). Although neuroscientists warn against drawing causal conclusions on the relation between neuromaturational processes and real-world behaviour (Johnson, Blum and Giedd, 2009, p. 216), this finding of longer brain immaturity has led to claims to extend the protection of children’s rights to the age group of 18- to 25-year-olds (Veerman, 2010). Moreover, the societal context seems characterized by two opposite evolutions: on the one hand, the transition to adulthood is being further postponed, often until far above the age of 18 (Elchardus and Roggemans, 2010); on the other, the age at which one ventures into certain domains is decreasing. For instance, the confrontation with multiple sources of information occurs at an ever lower age, among others through internet and social media (Boonaert and Siongers, 2010).

Within the age group of 0–18, discussions on capacity and (the necessity to establish) age limits abound. When is a child ‘capable of forming his or her own views’, so that her or his views are to be given due weight ‘in accordance with the age and maturity of the child’ (Art. 12 CRC)? The answer to this question is of crucial importance – at least in mainstream thinking – for the participation of children in matters affecting them, such as divorce proceedings or alternative care settings. Another example concerns the minimum age of criminal responsibility (Cipriani, 2009). The recognition of ‘children’ as fully-fledged persons, as promoted by the children’s rights movement, may be – unduly – used as an argument in favour of (further) lowering the minimum age of criminal responsibility.

1.2. Child images and childhood

The observation that defining the notion of ‘the child’ or ‘children’ is not so straightforward builds on the understanding that the way we look at children is determined by the social and cultural context and practices in which children grow up. Because different social and cultural contexts coexist, both within as well as across societies, different understandings are possible on what ‘the child’ is. This idea is captured in the notion of ‘child image’. ‘Child image’ refers to the way we look at children, i.e. the often implicit assumptions such as biological or psychological traits that co-design the way we deal with children.

For instance, the most dominant impact on the way we perceive children comes from developmental psychology. The ‘invention’ in the seventeenth century – at least in the global North – of different developmental phases in childhood linked to ‘sensitive periods’ in a person’s lifetime, is a way to look at children that is still prominently present in child rearing today. In this view, children are considered as objects in need of protection because of their vulnerability. What characterizes them is their position of ‘adults in waiting’ or their ‘not yet’ status, i.e. ‘not-yet-fully-developed’. In terms of children’s rights, the focus then is on protection rights of children. Another child image, which has been common in many societies around the world but only gained ground more recently in the global North, is that of the ‘autonomous child’ (Reynaert et al., 2009). It considers children as active agents and autonomous and independent human beings. The interdisciplinary field of childhood studies has contributed to developing this new child image by recognizing the social and political significance of children’s meaning making and ideas. The key thought of this paradigm is the recognition that children are competent human beings. The children’s rights movement carried out these ideas in practice and policy by advocating for the recognition of the participation rights of children.

‘Childhood’ refers to the historical and socio-cultural structuring of children and child images in our society. A key characteristic of this structuring is the separation of children from adults based on child-specific traits such as biological and psychological determinants. This structuring has been labelled the ‘youth moratorium’ or the ‘institutionalized youth land’ (Verhellen, 2000; Zinnecker, 2000). The notion of ‘youth land’ or ‘youth moratorium’ refers to the institutionalization of childhood into ‘… preparatory arenas that implement a principle of integration by means of separation’. (Honig, 2008, p. 201). It can be considered as the result of a historical process in which children are gradually separated from the adult world with the aim to prepare them for adult life (Reynaert and Roose, 2014).

With the rise of the children’s rights movement and the academic field of childhood studies, questions were raised in relation to an exaggerated institutional paternalism when dealing with children. This stemmed from the critique that children are not merely ‘passive receivers of society’s messages’ (James and James, 2012). Children’s actions and processes of appropriation were recognized to equally contribute to transforming the historical and socio-cultural structuring of childhood in our society (James, 2009). The institutionalized youth land was contested and both the social and legal position of children were challenged. Children, it was said, are not only the future generation; childhood should likewise be considered as an actual part of current society (James and James, 2004). The cover of this Handbook, picturing a girl ‘inflating the globe’, represents such an image of children as agents, who give meaning and co-shape the world.

Important to notice is the fact that throughout time, different child images and different social constructions of childhood, coexist. ‘Old’ child images are not fully replaced by new ones. They continue to exist as part of society’s view on childhood. As James and Prout (1997) argue, the way we look at children and childhood is anchored in the past and reshaped in the present. Likewise, until today, the institutionalized youth land remains the horizon against which childhood in the Western world is shaped, although the ‘nature’ of this youth land has changed over time (Reynaert and Roose, 2014).

This coexistence of different child images and constructions of childhood creates confusion and tensions. Different societal actors may emphasize different characteristics of the same social phenomena, often resulting in the paradox of ‘the child in danger’ versus the ‘dangerous child’. In the public sphere for instance, no age group has so much expertise about social media as children and young people have. These so-called ‘digital natives’ are characterized by the integration of digital technology in their daily lives. However, popular discourses on social media and children often focus on phenomena such as cyberbullying or cyberstalking, portraying children as dangerous. At the same time, however, these discourses point at the harms the internet can cause to young people, resulting in the development of new technologies to protect children. Similar observations can be made in relation to the presence of children in the public sphere. Children can participate in public life, as long as they behave. Initiatives such as a curfew or mosquitos² are meant to protect society against the anti-social behaviour of ‘dangerous’ children. At the same time, public participation of children is limited due to the risks that go along with, for instance, traffic. Here, children are considered to be ‘in danger’, resulting in ‘child-friendly’ public spaces where children can play and meet. However, these places are often isolated from the broader public life, resulting in a further ‘islandization’ of childhood. These diverging views on childhood are all entrenched in the CRC, with the recognition of both protection as well as participation rights.

1.3. Children’s rights

The CRC (1989) is the key legal instrument on children’s rights. This Convention and its three optional protocols codify the human rights of children in international, legally binding instruments. With almost all states in the world being parties to the treaty,³ the CRC offers a set of minimum standards on children’s rights for which states can be held accountable. Guided by what has gradually come to be seen as the four underlying general principles – i.e. of (i) non-discrimination, (ii) best interests of the child, (iii) right to life, survival and development, and (iv) participation (Committee on the Rights of the Child, 2003, § 12) – the CRC grants children protection, provision and participation rights. For the first time, civil and political as well as economic, social and cultural rights were put together in a human rights treaty. Holistically addressing children as fully-fledged persons, these rights are inextricably related, with no intrinsic hierarchy between them (KeKi, 2012, pp. 11–12).

Even though the CRC is an essential component in the legal embedding of the rights of children in the wider human right...