Rights Of Children Research Paper

It is perhaps not surprising, therefore, that a worldwide movement to recognize children as a distinct subgroup with claims of rights also occurred. In 1924, the League of Nations adopted the first Declaration of the Rights of Children. In 1989, the United Nations General Assembly adopted the UN Convention on the Rights of the Child (UN Convention 1989), which has been called the ‘most comprehensive and detailed of all … international human rights instruments’ (Alston 1994, p.1). The Convention has been ratified by 192 of the 194 UN members. In the United States conservative political groups, concerned that the CRC undermines parental authority and gives government too much power over families, have contributed to blocking ratification. Somalia lacks an internationally recognized government, precluding ratification.

Despite the seemingly widespread acceptance of the concept of children’s rights, the idea that children, individually or as a class, should have rights (claims enforceable against others) is actually revolutionary and problematic both in philosophical and practical terms. Determining what rights to provide children requires that societies confront fundamental value issues quite different from those entailed in recognizing other groups’ claims.

First, children generally are not autonomous; they are dependent. Ideally, they are part of families; their life chances are greatly affected by the care they receive from their families. Parents need authority to fulfill these responsibilities; some highly respected child development specialists argue that giving children rights may be incompatible with sound child development (Goldstein et al. 1973). In addition, giving children rights may conflict with parental rights and privacy. However, parents do not always act in their children’s best interests and the community as a whole has an interest in the development of future generations. Children have their own views and desires. Therefore, it must be decided how responsibility for the well-being and upbringing of children should be allocated between parents, families, the child, and the community as a whole.

Second, intellectual and emotional capacities develop gradually, for both biological and social reasons. These limits in capacity may conflict with claims that children should have the same liberties and privileges as adults (Purdy 1992). A theory of children’s rights must address the question, what entitles persons to be full participants in a country’s civil and political life? This research paper reviews the historical development of children’s rights. It then describes the different categories of claims made under the rubric of children’s rights and discusses value issues that need to be resolved as governments, courts, and citizens seek to define the children’s status in each society. It concludes by examining the challenges countries face implementing any such rights.

1. The Historical Context

For much of history children were viewed largely as nonpersons, the property and responsibility of their parents, who had a right to control their upbringing, even their very existence (Eekelaar 1986). Children (usually defined as persons under 21 or 18 years of age) also could not participate in the political or civic life of their countries.

In the mid-1800s, some countries began assuming state responsibility for promoting and protecting children’s well-being. Initially, this entailed providing free public education and passage of laws protecting children from severe physical abuse by their parents. Over the next 100 years, Western industrialized countries adopted more laws affecting the status of children, including laws limiting child labor in settings outside the family, passage of compulsory school attendance laws, and greater state efforts to protect children from parental maltreatment. The idea that childhood was a period for gradual maturation and lesser responsibility also was reflected in the creation of the juvenile court, which was directed to treat, not punish, children who violated the law (Hawes 1991).

While these policies were advocated in the name of children’s rights, and certainly contributed to their well-being, these were not the types of civil rights that other groups were demanding and receiving. The focus was on their protection, not their autonomy or fuller integration into the economic and political life of their countries. Moreover, except where parental behavior was seen as inimical to the social order, parents continued to have virtually total authority over their children’s upbringing. In the United States, where the movement towards child protection was most evident, the US Supreme Court ruled early on that parents had a constitutional right to control their children’s upbringing (Meyer v. Nebraska 1923).

In fact, these laws often were supported primarily as a means of protecting adult interests. For example, child labor laws and compulsory schooling were championed by newly emerging labor unions, which viewed the availability of child labor as a barrier to higher wages for adults (Woodhouse 1992). Proponents of the juvenile court promoted it as a needed intervention to protect society from children who were not being adequately supervised by their parents, often poor, immigrant parents (Schlossman 1977).

Since the 1960s, countries have continued expanding the protection of children’s well-being. The establishment of a right to education for virtually all children throughout the world, increased state efforts to guarantee children a minimal level of material wellbeing, and greatly expanding state intervention into family privacy through child abuse laws have all benefited children. Moreover, during this period, in many countries children were recognized as rights-holders with respect to freedom of speech and other civil liberties and were given a greater degree of legal autonomy over the decisions affecting their lives.

Yet the scope of applicable rights remains highly contested. At the extreme, some commentators have argued for ‘children’s liberation,’ with the complete elimination of distinctions between children and adults with respect to all political, social, and familial rights (children, as reflecting of their status, usually have not been the demanders of rights, in contrast to other groups). For example, they argued that children should have the right to vote, to decide whether to go to school, and to a share of the family income to spend as they choose (Farson 1974).

Few proponents of children’s rights go this far. Most advocates propose limiting, but not eliminating, parental autonomy in controlling their children’s lives and giving children increasing autonomy as they mature, in recognition that capacities develop over time. Yet even the more limited types of claims of rights raise profoundly difficult issues.

2. What Is Meant By Children’s Rights

The term children’s rights is used to encompasses a variety of different claims (Campbell 1992). Distinguishing these categories reveals the tensions in the general concept and helps identify the issues related to the implementation of various types of claims.

2.1 Basic Human Rights

The first claim is that children are entitled to basic human rights, including the right to life itself, the right not to be ‘owned’ by another, the right to freedom from tobrture or other cruel punishment, and the right to be free from discrimination based on race, color, sex, religion, or national, ethnic, or social origin.

Such rights are widely accepted for adults, despite continuing problems with implementation, especially with respect to nondiscrimination based on gender, race, and ethnicity. Since these rights are not tied to competence or capacity, there is no reason for denying them to children on this basis. The critical step is accepting that children are persons, not chattels or incomplete human beings. The adoption of this premise by virtually all countries reflects a fundamental shift in the conception of children.

Still, application of these rights to children is not entirely unproblematic, at least with respect to the relationship of parents and children. Few countries still consider children to be the property of their parents. However, many people agree with Professor Charles Fried that ‘the right to form one’s child’s values, one’s child’s life plan … are extensions of the basic right not to be interfered with in doing these things for oneself’ (Fried 1978). Yet, such a right constitutes a form of ‘ownership’ and may conflict with the child’s right to an ‘open future’ and with society’s interest in how future adults are socialized (Feinberg 1980).

There is no easy resolution to this conflict. Unless the state were to intervene in family life in ways that would be deemed unacceptable in most countries, parents will continue to make critical decisions for children, regardless of the child’s wishes. As noted, respected child development experts assert that parents need autonomy to successfully raise their children.

Moreover, deference to parental or family authority may be demanded by a society’s political, cultural, or religious traditions. In some countries, supporting parental autonomy is seen as critical to supporting political and cultural diversity. In others, the proper role of parents may be seen as teaching children to accept national cultural values and traditions, not as helping children develop into ‘autonomous’ adults (see generally Alston 1994). Many countries have reserved the right to apply the CRC in light of their own cultural or religious laws, although there is evidence that the CRC is influencing these values (International Journal of Children’s Rights 1995). Whether children’s rights are universal or culture specific likely will remain one of the major debates in implementing the CRC.

In fact, given that children’s values and perspectives are malleable and constructed, someone will shape their values and personhood. Parents, families, neighborhoods, peers, government institutions such as schools and general cultural norms all play a part. Thus, the issue is what are the appropriate roles of the family and the state in making critical decisions, such as those regarding schooling, religion, where the child shall live, not whether children should have the right to control their own upbringing (Coons et al. 1991). This question goes to the heart of how a society defines the relationship between the state and the individual, adults and children alike.

Children also are denied some basic civil rights available to adults because societies have an interest in how they are socialized. At a minimum, children are compelled to go to school, thus restricting their liberty rights. Finally, there is still substantial debate over the status of the fetus with respect to abortion and maternal behavior during pregnancy. Because no consensus could be reached on this issue, the CRC leaves the question to each country.

Despite these problems, the recognition that children are persons, with rights, along with the acceptance of the basic premise of the CRC that in all decisions affecting children their ‘best interests’ shall be a primary consideration, constitutes a great advance that clearly benefits the vast majority of children.

2.2 Welfare Rights

A second category of claimed rights is that government should guarantee children a basic level of well-being; these are often called welfare rights. The CRC provides that children should have a right to ‘a standard of living adequate for the child’s physical, mental, spiritual, moral and social development’ (ART 27), ‘the enjoyment of the highest attainable standard of health …’ (ART 24), and to education (ART 28). The CRC goes beyond these basic goods, and seeks to afford children a broader set of welfare rights, including the right ‘to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts’ (ART 31).

Since the 1950s, governments have assumed increasing responsibility for guaranteeing that children have adequate food, nutrition, shelter, and health care. In many countries, children benefit from general social welfare policies, which provide all citizens with universal health insurance and various forms of income support. Most industrialized countries also have partially socialized the cost of caring for children through children’s allowances, paid parental leave after the birth of a child, and public provision of day care. Many less economically developed countries are moving in the same direction, despite limited financial resources.

The laggard in this regard, given its capacity, is the United States. In the late 1900s child poverty actually grew in the United States. Resistance in the US reflects, in part, the belief of many political figures that childhood poverty is caused by ‘irresponsible’ adult behavior, such as having children out of wedlock, and that it is impossible to provide goods to children without also giving them to adults, thereby ‘rewarding’ the adults’ action. In addition, many politicians support the premise of libertarian theorists like Robert Nozick that there is no moral justification for the redistribution of wealth (Nozick 1974).

Even in countries that accept a welfare state, the level of support that a child should receive remains largely a political issue, not a legal right enforceable by courts. No matter how wealthy a country, tradeoffs between levels of socially provided health care, housing, education, and other welfare goods are now seen as inevitable. Courts, appropriately, are reluctant to get too deeply into these decisions. Since the scope of the claimed right is so vague, courts lack the legitimacy and authority to order elected governments to provide people with specific levels of well-being. In addition, some theorists contend that, in the political process, framing political debates in terms of moral obligations that the citizens of a country pledge to provide to each other may prove more productive thn trying to establish rights (O’Neill 1988, cf. Freeman 1992).

Another critical question is whether welfare rights should encompass the right to ‘equal opportunity.’ Opportunity focuses on each child’s options in adulthood. Social scientists have struggled to identify the goods that must be provided to children during childhood in order to equalize their opportunities as adults. Much of the focus is on education. But opportunity is also highly influenced by the quality of parenting a child receives and the social and cultural environment in which the child is raised. A right to equal opportunity is far more difficult to guarantee than a right to basic necessities and may require restricting parental rights (Fishkin 1983).

2.3 Protection Rights

A third category of claimed rights for children is protection from inadequate care from their caretakers, especially their parents. Since giving children more protection changes their relationship with their parents and the state’s relationship with parents and families, this right raises fundamental issues quite different from welfare rights.

The degree of justifiable state intrusion against a parent’s will remains highly debated. Should the state treat parents as ‘stewards’ or ‘trustees’ of their children, and seek to ensure that parents provide children a high level of care, or should the state be the protector ‘of last resort,’ intervening only if parental care is clearly harmful?

Most countries have decided that coercive intervention should be limited to situations where the actual or threatened harm to the child’s physical or emotional well-being is substantial. This approach reflects the judgement that unwanted intervention is a drastic step from the child’s, as well as the parent’s, perspective. It also is based on evidence that the care provided to children removed from their families sometimes is as bad or worse than the parental care (Wald 1982).

However, a few countries have adopted laws that seek to provide greater protection for children. Five countries have banned any corporal punishment of children; while these laws do not carry any significant sanctions for violation, they reflect a different conception of the rights of children and the role of the state. In recent years, evidence that early child-rearing can substantially affect a child’s school readiness and performance has led to increased calls for more extensive monitoring of how each child is being reared. In the future, governments will continue to struggle with the appropriate grounds for protective intervention. The critical task, however, will be to develop and connect children to social programs that enhance all children’s well-being and future opportunities without resorting to coercive interventions. By the time protection rights must be invoked, the child has suffered substantial harm and the capacity of the state to rectify the situation is often limited (US Advisory Board 1991).

2.4 Liberty And Participation Rights

The fourth category of rights does focus on autonomy. In virtually all countries, persons under 18 lack the right to vote and to marry, they are restricted in making decisions about whether to work, and in their freedoms of expression and other civil rights. In addition, in many countries children accused of criminal behavior generally are denied some due process rights available to adults in that country, for example the right to a jury trial; these limitations have been justified as necessary to promote the rehabilitative ideals of the juvenile justice system.

In 1967, the US Supreme Court determined that children are entitled to at least some of the rights guaranteed by the free speech provision of the US Constitution (Tinker v. Des Moines Independent Community School District 1969). Since then the liberty rights of minors have been gradually increased in the US and many other countries. The CRC provides that: ‘(the) child shall have the right to freedom of expression; this right shall include the 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’ (ART 13); ‘(s)tates parties shall respect the right of the child to freedom of thought, conscience, and religion’ (ART 14); ‘(s)tates parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly’ (ART 15). Notably, the CRC does not provide adult status in other areas, such as the right to vote, marry, work, or to be from constraints imposed only on children, such as the obligation to attend school, or to be at home by a certain hour (curfew laws).

Courts, legislatures, and the drafters of the CRC have not arrived at any consistent theory justifying granting children some rights and not others. Nor have they resolved the tension between claims for special protection and for full participation. If adolescents are seen as having the maturity and capacity to make decisions about their health care, to choose what they read or see, or to vote, does it follow that they should be held fully responsible for their antisocial behavior?

The critical issues relate both to capacities and to questions about developmental needs. For some rights, such as voting or marrying, it is generally accepted that some minimum level of competence is necessary to the proper exercise of the right. Children often are denied other rights, such as unlimited access to books or movies, on the assumption that early exposure to certain materials or ideas may be harmful to them.

An overriding question is whether it makes sense to assume that the same age line should govern access to all political and civil rights. Franklin Zimring has proposed treating children as possessing a ‘learner’s permit,’ whereby they are given increasing autonomy and responsibility over time (Zimring 1982). Different rights might be available at different ages, based on best guesses about average capacity. Age lines are inherently arbitrary; not all people attain capacities at the same age. But individualized decisions about whether someone is old enough to vote, marry, or leave school are likely, in practice, to be even more arbitrary, as is having a single age trigger all rights.

2.5 Autonomy Within The Family

The issues regarding autonomy rights are even more difficult with respect to the right of children to act independently of their parents’ wishes. The extreme view, that children of any age should be free to make their own decisions, has not received acceptance. In many countries giving children any autonomy within the family would be incomprehensible. In other countries, there are debates about whether children should have a right to make certain major decisions, such as whether to have an abortion or receive treatment for substance abuse, without their parents’ permission or knowledge. Advocates of giving children these rights contend that many children will be reluctant to seek out needed services if their parents are informed. Children have also been given some rights to determine important aspects of their life, such as which parent to live with in the case of divorce. The case for giving children rights is strongest with respect to decisions where parents may not be counted upon to generally act in their children’s best interests.

There is no easy resolution to the tension between parental rights and children’s rights. It is unrealistic to assume that children can have total liberty rights, enforceable against their parent’s opposition. Asking courts to enforce most such rights would be a waste of court resources and the orders would be unenforceable as a practical matter. But giving children some rights is feasible, for example, access to drug treatment or abortion without parental permission. The question is whether the benefits of giving children autonomy with respect to the decision outweigh the harms of limiting parental oversight of their children. These rights will have to reflect the legal and social structure of each country and should not be thought of as universal children’s rights.

3. The Future

The situation of children throughout much of the world has been improved substantially during the twentieth century. Concepts of rights likely contributed to these advances. The recognition that children are independent human beings with claims to special attention and resources is a major advance with respect to universal recognition of human rights (Freeman 1992).

However, further development of children’s rights will require resolving the value issues often masked by rights talk. Despite the unprecedented rapidity of the ratification of the CRC, the fact that the contours of many of the proposed rights are not very clearly defined will make enforcement and monitoring by the international bodies problematic. In fact, the very vagueness of the obligations may account for the rapid ratification and almost total support of the CRC, despite the fact that many of the proposed rights seemingly conflict with deeply held cultural and religious values in many countries. Countries expect to interpret the provisions in light of their customs and values.

With respect to welfare rights, those concerned with helping children must recognize that realization of most of the proposed rights requires policies that help families, not just children. Children’s well-being generally is inseparable from that of the parents. Greater provision of welfare rights should lessen the occasions that protection rights will need to be invoked. However, in establishing welfare rights countries need to ensure that when adults seek to act on behalf of children, their own needs do not take precedence.

With respect all general social policies, countries must think through the implications of the fact that children, who may constitute a third to half of the population, cannot vote. The poorest children are further disenfranchised by the general powerlessness of their parents. Some countries are making significant efforts to include the voices of children in discussions of issues related to them and to more general public policy issues. The recognition of children’s right to speak for themselves could significantly alter the place of children in the state (Melton and Limber 1992).

In the poorest countries, it will be very difficult to promote any form of children’s rights unless general poverty is alleviated. Many countries continue to deal with problems of street children, child prostitution, child labor, and infanticide. The advancement of children’s rights in these countries will be intimately linked to women’s rights, since it is unlikely that children will have economic security and greater liberty if their mothers lack these rights. It will also require wealthier countries to demonstrate concern for children beyond national borders.

Children’s rights advocates sought to make the 1900s the century of the child. They were successful in many respects. Future advances will require finding adequate balances for the tensions that have been identified, as well as eliminating the negative impacts on children of discrimination based on race, class, and gender. For most children, these later factors may be greater barriers to their rights and well-being than age.

Bibliography:

1. Alston P 1994 The best interests principle: towards a reconciliation of culture and human rights. In: Alston P (ed.) The Best Interests of the Child. Clarendon Press, Oxford, UK
2. Armstrong M, Chuulu M S, Himonga C, Letuka P, Mokobi K, Ncube W, Nhlapo T, Rwezania B, Vilakazi P 1995 Towards a cultural understanding of the interplay between children’s and women’s rights: an Eastern and Southern African perspective. International Journal of Children’s Rights 3: 333–68
3. Campbell T 1992 The rights of the minor: as person, as child, as juvenile, as future adult. In: Alston P, Parker S, Seymour J (eds.) Children, Rights and the Law. Clarendon Press, Oxford, UK
4. Convention of the Rights of the Child 1989 G.A. Res 44 25 U.N., GAOR, 44th sess., Annex, Supp. No 49 at 167 U.N. Doc A 44 49
5. Coons J, Mnookin R, Sugarman S 1991 Puzzling over children’s rights. Brigham Young University Law Review 307–50
6. Eekelaar J 1986 The emergence of children’s rights. Oxford Journal of Legal Studies 6: 161–82
7. Farson R 1974 Birthrights. Macmillan, New York
8. Feinberg J 1980 The children’s right to an open future. In: Aiken W, LaFolette H (eds.) Whose Child? Children’s Rights, Parental Authority, and State Power. Rowman and Littlefield, Tottowa, NJ
9. Fishkin J S 1983 Justice, Equal Opportunity, and The Family. Yale University Press, New Haven, CT
10. Freeman M 1992 Taking children’s rights more seriously. In: Alston P, Parker S, Seymour J (eds.) Children, Rights and the Law. Clarendon Press, Oxford, UK
11. Fried C 1978 Right and Wrong. Harvard University Press, Cambridge, MA Goldstein J, Freud A, Solnit A J 1973 Beyond the Best Interests of the Child. Free Press, New York
12. Hawes J 1991 The Children’s Rights Movement: A History of Advocacy and Protection. Twayne Publishers, Boston
13. International Journal of Children’s Rights 1995 Special Issue: Multiculturalism and The Rights of the Child 3: 1–144
14. Melton G, Limber S 1992 What children’s rights mean to children: children’s own views. In: Freeman M, Vreeman R (eds.) The Ideologies of Children’s Rights. Kluwer Academic Publishers, Dordrecht, The Netherlands
15. Meyer v. Nebraska 1923 United States Supreme Court Reports 262: 390–403
16. Nozick R 1974 Anarchy, State and Utopia. Basil Blackwell, Oxford, UK
17. O’Neill O 1988 Children’s rights and children’s lives. Ethics 98: 445–63
18. Purdy L 1992 In Their Best Interest? Cornell University Press, Ithaca, NY
19. Schlossman S L 1977 Lo e and the American Delinquent. University of Chicago Press, Chicago
20. Tinker v. Des Moines Independent Community School District 1969 United States Supreme Court Reports 393: 503–26
21. United States Advisory Board on Child Abuse and Neglect 1991 Creating Caring Communities. US Department of Health and Human Services, Washington, DC
22. Wald M 1982 State intervention on behalf of endangered children. International Journal of Child Abuse and Neglect 6: 3–45
23. Woodhouse B 1992 ‘Who Owns the Child?’: Meyer and Pierce and the child as property. William and Mary Law Review 33: 995–1122
24. Zimring F 1982 The Changing Legal World of Adolescence. Free Press, New York London