Abstract and Keywords
Children's rights can refer to moral rights—basic human rights regardless of age or station—and legal rights, those awarded based on chronological age or level of maturity. They are conceptualized in three categories: protection rights (the right to be free from harm and exploitation), provision rights (the right to have their basic needs met), and participation rights (the right to have a say). Children's rights can conflict with family autonomy, and state intervention is based on the common law doctrine of parens patriae. The UN's Convention on the Rights of the Child is the most comprehensive statement of children's rights to date.
The idea that children themselves have rights—rather than derived through family or bestowed at adulthood—is a very modern one (Archard & Macleod, 2002; Brighouse, 2002; Franklin, 1995; Hawes, 1991; John, 2003; Purdy, 1992). Although children's rights have received a good deal of public attention, the notion of what actually constitutes children's rights and the theory underlying those rights are contested. In a frequently quoted passage from a 1973Harvard Law Review article written by Hillary Rodham—later First Lady Hillary Clinton—she declared that children's rights “was a slogan in search of a definition.” The “slogan,” as she called it, is problematic because embedded within it are contested ideas about what constitutes “childhood,” what is meant by “rights,” and how the two concepts interact.
Childhood is sometimes defined in absolute terms, as those younger than the age of majority (generally set at 18). It is also considered a period of development and growth. Differing assumptions of what constitutes a child (or adolescent) and how that period is delineated—by chronological age or level of maturity (based on some emotional, social, or physical dimension)—are embedded in various policy and program approaches.
The notion of “rights” can encompass moral rights, as posited by theologians and philosophers, or legal rights as framed by lawyers, judges, and politicians. In general, moral rights are deemed basic human rights; children should have the same claim to them as adults do. Alternatively, legal rights for children, including political, constitutional, or civil rights, are more often characterized as moderated and are increasingly granted as an individual ages. Further complicating an understanding of rights are questions of context. Should rights vary according to religious, cultural, and community practices? Issues such as female circumcision, child labor, and capital punishment of minors trigger such contextual debates.
Tensions in characterizing youth as both dependent and independent beings can be unintentionally aggravated by child and youth advocates who argue “youth rights” from narrow, dichotomized perspectives. Advocates of the former, for example, speak of paternalistic child policies based on assumptions that children need protection, while those of the latter speak of child liberation approaches based on assumptions that youth's participatory interests and rights of self-determination ought to be honored. Those who advocate exclusively from either one position or another may lose sight of a more complicated, comprehensive picture of children's rights.
Scholars who think broadly about the issue seek to integrate the various perspectives. For example, Harry Brighouse, a professor of philosophy, has argued that children differ from adults in three important ways (Brighouse, 2002). First, they are dependent on others because of their inability to provide for their own needs. Second, given this dependency, they are also uniquely vulnerable to decisions made by others. Finally, children have the capacity to develop in a way that will one day allow them to meet their own needs. He then distinguishes between welfare and agency rights and he further divides these based on immediate interests and future interests. Note the important matrix of concerns that result. This comprehensive framework considers the immediate and future welfare rights of children, as well as their immediate and future agency rights. However, it raises additional questions about how and when those assorted rights should be allocated and who should enforce or even monitor these rights if children are not in a position to do so themselves. The two primary actors involved are the family and the state (Goldstein, Freud, Burlingham, & Solnit, 1979; Goldstein, Freud, Solnit, & Burlingham, 1979; Purdy, 1992).
Parents or legal guardians are charged with the care, discipline, and nurturance of their children. The right of legal caretakers to be free from state intervention is generally protected. Alternatively, English common law doctrine of parens patriae—literally parent or father of his country—has justified state intervention in family life on behalf of children under certain conditions. This happens in abuse and neglect, custody and visitation, and adoption and paternity proceedings, among others. The interventions tend to be paternalistic in nature and litigated based on the child's “best interests” (Goldstein, Freud, Solnit, & Burlingham, 1979).
Children's rights can come into conflict with the notion of family autonomy because some argue that state intervention on behalf of the child usurps parental rights.
In the United States, leading scholars on children's rights have tended to write about them either as embedded in larger social movements (such as the Progressive Era or civil rights movement) or in terms of various topical domains (child labor, education, juvenile justice, health, protective services, and so forth) (Hawes, 1991; Nasaw, 1979, 1985). During the Progressive Era, many reformers focused on the needs of children (later earning themselves the label of “child savers”). At the turn of the 19th century, anti-child-labor campaigns led to protections; compulsory education was introduced as a way of raising responsible citizens; and child-friendly institutions—which recognized differences in children and adults—were introduced, such as juvenile courts, reform schools, and orphanages. In 1912 the Children's Bureau—the first federal agency devoted to children—was established to investigate and report on child welfare issues, including infant mortality, birth rates, and conditions in children-based institutions.
In the 1960s and 1970s—perhaps in partial response to demographic trends that saw the “baby boomers” growing through their teenage and young adulthood years and a conflation of other rights-based movements (women's liberation, gay rights, civil rights, and so forth)—there was a renaissance of interest in youth rights. Arguably, the modern children's rights movement is traceable to significant judicial decisions and legislative enactments dating from this period.
Important federal legislative initiatives during the 1960s included the Elementary and Secondary Education Act of 1965, Head Start of 1965, and the Child Nutrition Act of 1966. In the mid-1970s a burst of federal legislative energy consolidated and articulated many child and youth policies, which included the Child Abuse Prevention and Treatment Act (CAPTA) of 1974, the Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974, the Indian Child Welfare Act of 1978, and the Education of All Handicapped Children Act of 1973 (now IDEA). Although the United States does not have a single, comprehensive statement of child policy, embedded in these various pieces of legislation are indicators of the scope of rights and protections afforded to children and adolescents in diverse domains such as education, child welfare, and juvenile justice.
The U.S. Supreme Court has also actively recognized constitutional rights for children during this period. For example, the court began protecting children's procedural due process rights in juvenile court while not affording them the full constitutional protections of adults (Kent v. U.S., 1966; In re Gault 1967); it protected youths' rights to political free speech in school settings and their right not to be expelled from school without due process (Tinker v. Des Moines, 1969; Goss v. Lopez, 1975) and declared unconstitutional practices that excluded “mentally retarded” children from attending public schools (PARC v. Pennsylvania, 1972). Although this is not a comprehensive list of youth rights, it demonstrates the judiciary's recognition of children's limited legal and political rights.
Furthermore, many important associations and commissions have taken up the issue of children's rights in the United States. The National Association of Social Workers (NASW) issued a position statement called the “Children and Youth Bill of Rights” that was first adopted by the delegate assembly in 1975 and reconfirmed by the assembly in August 1990. This bill of rights notes, “It is essential that public social policy recognize children as individuals with rights, including the right to be part of a family.” In 1991, the National Commission on Children issued an important report entitled “Beyond Rhetoric: A New American Agenda for Children and Families.” Among other things, it proposed an agenda that included “ensuring income security, improving children's health, increasing educational achievement, supporting the transition to adulthood, strengthening and supporting families, protecting vulnerable children and their families, making policies and programs work, and creating a moral climate for children.”
The international community has also been concerned with children's rights. In November 1959, the United Nations' General Assembly adopted the Declaration of the Rights of the Child, basing it on 10 guiding principles. Among them were the right to healthy development (including mental, moral, and spiritual); education; a name and nationality; family or a state-provided substitute; social security benefits, broadly defined; protection from neglect, cruelty, and exploitation; freedom from discriminatory practices (based on gender, race, ethnicity, religion, and so forth); and special treatment, education, and care for handicapped children.
Building on this earlier initiative and following a decade of negotiation, the United Nations adopted the Convention on the Rights of the Child (CRC) in November 1989. Every country, except the United States and Somalia, has ratified the CRC. Child advocates and scholars have conceptualized children's rights in this influential document in three areas: protection rights (those that guard children against physical harm, economic or sexual exploitation, and so forth), provision rights (those in which children are entitled to have their basic needs met), and participation rights (those in which the child's voice is respected). Although interpretation of the enumerated rights listed in CRC varies by country, all of them must be enacted under a set of guiding principles offered at the outset of the document. Included among these are the right of “nondiscrimination” (Article 2) and the requirement that the “child's best interests” be promoted (Article 3). The CRC arguably represents the most comprehensive statement of children's rights—what they need to live and thrive—to date.
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