Children’s Rights (Stanford Encyclopedia of Philosophy)

Children’s Rights (Stanford Encyclopedia of Philosophy)

Children’s Rights

First published Wed Oct 16, 2002; substantive revision Fri Oct 13, 2006

Children are young human beings. Some children are very young human beings. As human beings children evidently have a certain moral status. There are things that should not be done to them for the simple reason that they are human. At the same time children are different from adult human beings and it seems reasonable to think that there are things children may not do that adults are permitted to do. In the majority of jurisdictions, for instance, children are not allowed to vote, to marry, to buy alcohol, to have sex, or to engage in paid employment. What makes children a special case for philosophical consideration is this combination of their humanity and their youth, or, more exactly, what is thought to be associated with their youth. One very obvious way in which the question of what children are entitled to do or to be or to have is raised is by asking, Do children have rights? If so, do they have all the rights that adults have and do they have rights that adults do not have? If they do not have rights how do we ensure that they are treated in the morally right way? Most jurisdictions accord children legal rights. Most countries—though not the United States of America—are also signatories of the United Nations Convention on the Rights of the Child which was first adopted in 1989. The Convention accords to children a wide range of rights including, most centrally, the right to have their ‘best interests’ be ‘a primary consideration’ in all actions concerning them (Article 3), the ‘inherent right to life’ (Article 6), and the right of a child “who is capable of forming his or her own views … to express these views freely in all matters affecting the child” (Article 12) (United Nations 1989). However it is normal to distinguish between ‘positive’ rights, those that are recognised in law, and ‘moral’ rights, those that are recognised by some moral theory. That children have ‘positive’ rights does not then settle the question of whether they do or should have moral rights. Indeed the idea of children as rights holders has been subject to different kinds of philosophical criticism At the same time there has been philosophical consideration of what kinds of rights children have if they do have any rights at all. The various debates shed light on both the nature and value of rights, and on the moral status of children.

• 1. Children and Rights
• 2. Critics of Children’s Rights
• 3. Liberationism
• 4. Arbitrariness
• 5. Children’s Rights and Adult Rights
• 6. The Child’s Right to Grow Up
• 7. Best Interests
• 8. The Right to be Heard
• Summary
• Bibliography
• Other Internet Resources
• Related Entries

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1. Children and Rights

Article 1 of the United Nations Convention defines a child as any human being below the age of eighteen years ‘unless,’ it adds, ‘under the law applicable to the child, majority is attained earlier’ (United Nations 1989). In what follows this definition will be assumed. Some think it obvious that children do have rights and believe that the only interesting question is whether children possess all and only those rights which adults possess. Others are sceptical believing that given the nature both of rights and of children it is wrong to think of children as right-holders.

One background worry against which such scepticism may be set is a currently oft-expressed concern at the proliferation of rights. Rights are, so it is alleged, now promiscuously ascribed in two ways. First, the list of right-holders has been extensively lengthened. Second, many more demands are expressed as rights claims. The concern is properly understood as one that the prodigality of rights attributions is damaging to the cause of rights. If you give away too many rights they may cease to have the value and significance they once had, and ought still to have. A favoured metaphor in this context is monetary: the inflation of rights talk devalues the currency of rights (Sumner 1987, 15; Steiner 1998, 233). That currency is indeed precious for it is almost universally accepted that rights, insofar as they exist, are things whose possession is of very great advantage to their owners.

This thought must trouble the defenders of children’s rights since, after all, talk of children having rights has post-dated the introduction and general acceptance of rights talk as such. There are, however, more particular reasons for being suspicious of the idea that children have rights. To appreciate these it is necessary to be clearer about the language of rights. With respect to rights in general we can inquire as to what it is for someone to have a right, or, put another way, what does being a right-holder consist in. There are here two competing accounts, one of which is seen as fatal to the idea of children as right-holders. We can ask a different question, namely what must be true for there to be rights. That is, we can try to specify what have been called the ‘existence conditions for rights’ (Sumner 1987, 10-11). We can also construct a taxonomy of the different kinds of rights. Finally we can ask what the moral significance of having a right is, or what weight rights have. Some for instance have viewed rights as being absolute such that the fact of a person’s possession of a right is sufficient to outweigh or discount all other moral considerations (Nozick 1974). Others believe the possession of rights to be a weighty consideration but not so weighty as to outbalance every other moral claim. With regard to any acknowledged right we can identify it by means of its content (what is it a right to?) and its scope (who has it and against whom do they have it?), as well as its weight relative to other rights and to other moral considerations. Some believe that rights never conflict. But, if they do, we need to know which right should have priority. Not all of these questions are relevant when we want to focus on the particular issue of whether or not children have rights, and, if so, which ones. However the first question raised above is especially salient.

What is it for someone to have a right? Here there are two competing theories whose respective virtues and vices have been extensively debated without either gaining evident or agreed supremacy. In one camp is the will or choice theory (Hart 1973; Sumner 1987; Steiner 1994); in the opposing camp is the welfare or interest theory (MacCormick 1982; Raz 1984; Kramer 1998). The first theory sees a right as the protected exercise of choice. In particular to have a right is to have the power to enforce or waive the duty of which the right is the correlative. What it means, on this theory, for me to have the right to education is for me to have the option of enforcing the duty of some other person or persons to provide me with an education, or to discharge them from the responsibility of doing so. The second theory sees a right as the protection of an interest of sufficient importance to impose on others certain duties whose discharge allows the right-holder to enjoy the interest in question. What it means, on this theory, to have a right to education is for me to have an interest in being educated which is so important that others are under an enforceable duty to provide me with an education. It is natural to think that each theory is more appropriate for certain kinds of rights. The will theory fits rights actively to do things (to speak, to associate with others) whereas the interest theory fits rights passively to enjoy or not to suffer things (to receive health care, not to be tortured). However the distinction between the theories of what it is to have a right is not the distinction between different kinds of rights, even if there are important relations between the two distinctions.

The will and the interest theory is each alleged to have failings. But interestingly in this present context one defect of the will theory is—so its critics argue—its exclusion of some humans from the category of right-holders. This is because whilst all humans, and perhaps many classes of non-humans such as animals, have interests that ought to be protected, not all humans have the capacity to exercise choice. Children—along with the severely mentally disabled and the comatose—cannot thus, on the will theory, be the holders of rights. For at least one prominent defender of the interest theory the fact that children evidently do have rights is sufficient to display the falsity of the will theory, thus making children a ‘test-case’ for the latter (MacCormick, 1982). Of course someone who is convinced of the correctness of the will theory might readily concede that the theory entails the denial of rights to children but see no reason to abandon the theory. For her the entailment is not, ‘Children have rights. Therefore, the will theory is false’. It is, ‘The will theory is true. Therefore, children cannot have rights’.

Obviously different claims are being made and the same claims are playing distinct roles in different arguments. The claims in question can be set out as follows:

1. Rights are protected choices
2. Only those capable of exercising choices can be right-holders
3. Children are incapable of exercising choice
4. Children are not right-holders
5. Adults have duties to protect the important interests of children
6. Rights and duties are correlative
7. Children are right-holders

To explain (6). An important claim held by many is that for each and every right there is a correlative duty. To say that I have a right to something is to say that someone else has a duty to me in respect of that thing. The correlate rights and duties are, as it were, simply the two sides of one and the same single coin. This of course does not mean that there may not be some kinds of duties which do not correlate with any rights. Indeed some critics of children’s rights will concede that adults have duties to protect important interests of children but deny that these interests correlate with rights held by children. Now clearly (4) and (7) contradict one another: either children are right-holders or they are not. (4) follows from (2) and (3). (2) expresses the will theory. (3) is obviously a contestable, and contested, claim. But insofar as children cannot exercise choice and are required to do so on the will theory if they are to have rights, then it follows that they cannot have rights. (7), on the other hand, follows from (5) and (6) which give expression to the interest theory, although they do so only insofar as the duties adults have in respect of children are such that they do correlate with rights held by children. If they do then as things stand either the will theory is true and children do not have rights, or the interest theory is true and they do. Or, put another way, either children have rights in which case the will theory cannot be true, or they do not in which case that theory could be true.

Parental Rights – Analysis by Article of the UNCRC – Part 9 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Giving the State a Grasp on Your Kids

Part II of an in-depth look at Article 18 of the UN Convention on the Rights of the Child

When Kevin and Peggy Lewis volunteered their child for special education services, they never dreamed they would need a lawyer if they wanted to change their minds. After their son developed several learning issues, including an inability to focus in class and difficulty processing and understanding oral and written communication, the Lewis’s turned to the Cohasset Middle School in Massachusetts for help.1 But after a year in the school’s special education program, their son was not improving academically, and felt harassed by school officials who were closely monitoring and reporting on his behavior – everything from chewing gum in class to forgetting his pencil.2

Initially, the Lewis’s requested that the school pay for private tutoring, but as their relationship with the administration continued to decline, the exasperated parents finally decided to withdraw their son from the school’s program and to pay for private tutoring out of their own pockets.3

Apparently, that option wasn’t good enough for the school.

In December 2007, Cohasset hauled Kevin and Peggy into court, claiming that the parents were interfering with their son’s “constitutional right to a free and appropriate education.”4

After a day-and-a-half of argument, the judge sided with the school in an unwritten opinion.5

“This is truly devastating to all parents who have children on an IEP,” Peggy said, referring to the individual education plans for special education students. “What it means in fact when you sign an IEP for your child, you sign away your parental rights. . . . Now Cohasset has their grasp on my kid.”6

“Help” for Parents

At first glance, it seems odd that a school would take parents to court to compel them to accept state services. After all, as observers of the case commented, schools usually objects when parents demand more aid for their children, not when the parents try to withdraw their child from the program.7

But according to the UN Convention on the Rights of the Child, once parents have asked the state for assistance in raising their children, the state has both the responsibility and the authority to see the job through – even if the parents no longer support the state’s solution.

In addition to imposing legally-enforceable “responsibilities” on parents, Article 18 of the Convention also requires states to “render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities,” and to establish “institutions, facilities and services for the care of children.”8

At first glance, the offer of “assistance” to parents may appear harmless, and even generous, but appearances are often deceiving. While the government may claim to offer services to parents on a purely “voluntary” basis, parents soon discover that government “assistance” isn’t always free.

When “voluntary” doesn’t mean “voluntary”

For examples of this dangerous trend, one need look no further than the nation of Sweden, the first western nation to ratify the Convention.

In addition to mandatory sex-education, free child care for working parents, and a national ban on corporal punishment, Sweden’s local municipalities are also required by law to offer parents a broad array of “voluntary” services that promote “the favourable development of children and young persons.”9 Unfortunately, according to Swedish attorney and activist Ruby Harrold-Claesson, voluntary care “in no way is voluntary since the social workers threaten the parents to either give up their child voluntarily or the child will be taken into compulsory care.”10

If the state determines at a later date that the “voluntary” services are not helping, the municipality has both the responsibility and the authority to physically “take a child into care and place him in a foster home, a children’s home or another suitable institution.”11 According to Harrold-Claesson, since the emergence of such programs, “children are being taken from their parents on a more routine basis.”12

Unfortunately, these disturbing trends are not confined to Sweden. Even here in the United States, “voluntary” services for parents are often the first step toward state control of families.

Holding Children Hostage

As a young mother of three, “Katianne H.” faced tremendous difficulties in making ends meet.13 Although she was never unemployed, Katianne had difficulty putting her job ahead of the needs of her young family. So when her three-month-old son Xavier developed severe allergies to milk and soy protein, her pediatrician recommended that she relieve some of the pressure placed upon her by requesting that her son be placed in “temporary out-of-home care.”14 Thinking such a placement was truly “voluntary,” Katianne agreed.

Within a few months, Xavier was weaned from the feeding tube to a bottle, but when Katianne sought to bring him home, the state refused. It would take more than two-and-a-half years – and a decision from the Nebraska Supreme Court – before Katianne would win her baby boy back. 15

In a unanimous ruling, the court said the child should have been returned to his mother as soon as his medical condition was resolved. Instead, state authorities drew up a detailed plan requiring the mother to maintain steady employment, attend therapy and parenting classes, pay her bills on time, keep her house clean, improve her time management, and be cooperative with social workers. When she failed to fully comply with all these obligations within fifteen months, her parental rights were terminated.16

The Court condemned the state for keeping Xavier “out of the home once the reasons for his removal had been resolved,” and warned that a child should never be “held hostage to compel a parent’s compliance with a case plan” when the child could safely be returned home.17

A familiar pattern

According to studies, scholars, lawyers, and advocates, voluntary placement in the United States – like “voluntary” placement in Sweden – is often the first step toward the state getting a grasp on children. Here are just a few examples from within our own borders:

· A 1994 study in New Jersey found that “parents often report signing placement agreements under the threat that court action against them will be taken if they do not sign,” particularly parents who have “language or other barriers making it difficult or impossible for them to read and understand the agreement they were signing.”18 There are also no “clear legal standards to protect a family once it has entered the system,” even if it enters voluntarily: “existing legislation grants judges and caseworkers virtually unrestricted dispositional authority.”19

· In 1998, Melville D. Miller, President and General Counsel of Legal Services of New Jersey, warned that when parents sign voluntary placement agreements, parents give the state “custody of their children without any decision by the court that they have abused or neglected them.”20 In addition, voluntary placement often waives a family’s opportunity for free legal representation in court, leaving families – particularly poor families – with “no assistance in advocating for what they need” when disputes with the state arise.21

· In 1999, Dr. Frank J. Dyer, author and member of the American Board of Professional Psychology, warned that parents can be “intimidated into “voluntarily” signing placement agreements out of a fear that they will lose their children,” and that in his professional counseling experience, birth parents frequently complain that “if they had known from the outset that the document that they were signing for temporary placement of their children into foster care gave the state such enormous power over them, they would have refused to sign and would have sought to resist the placement legally.”22

· The Child Welfare League of America, in its 2004 Family’s Guide to the Child Welfare System, reassures parents that the state “do[es] not have to pursue termination of parental rights,” as long as the state feels that “there is a compelling reason why terminating parental rights would not be in the best interest of the child.”23 If parents and social workers disagree about the fate of a child in “voluntary placement,” the CWLA simply states that “if you decide to bring your child home, and the agency believes that this would interfere with your child’s safety, it has the right to ask the court to intervene. You also have the right to explain to the court why your child’s safety would not be in jeopardy if he came home.”24

· The National Crittenton Foundation, in a web booklet published for young, expectant mothers who are currently in the foster care system, warns in large, bold print that by signing a voluntary placement agreement, “you will most likely lose all custody of your baby, even if you want to regain custody of your baby after you turn 18.”25

Never Too Late

If one can learn anything from the stories of the Lewises, Katianne, and the plight of Swedish parents, it is that the government wields incredible power over parents who have “voluntarily” accepted its aid when caring for their children. These parents are often poor, struggling, and searching for the means to keep their families together, but instead of helping them, the open hand of the state can easily become a clenched fist, either bullying parents into submission or forcibly taking their children from them.

Thankfully, it is not too late to protect children and their families by protecting the fundamental right of parents to raise their children, and to reject government programs that are unneeded or unwanted. The state should only interfere with the family for the most compelling reasons – not because loving parents were misled about the true nature of “voluntary” care.

Please consider sending this message to your friends and urging them to sign the Petition to Protect Parental Rights.

This article was written for ParentalRights.org by Peter Kamakawiwoole, Jan. 29, 2009.

Notes

1. James Vazniz, “Cohasset schools win case v. parents,” The Boston Herald (December 15, 2007) (accessed January 28, 2009).
2. James Vazniz, “Parents want son out of special ed,” The Boston Herald (December 13, 2007) (accessed January 28, 2009).

3. Vazniz, “Cohasset schools win case v. parents.”

4. Vazniz, “Parents want son out of special ed.”

5. Vazniz, “Cohasset schools win case v. parents.”

6. Vazniz, “Cohasset schools win case v. parents.”

7. Vazniz, “Cohasset schools win case v. parents.”

8. UN Convention on the Rights of the Child, Article 18.2.

9. Ruby Harrold-Claesson, “Confiscating Children: When Parents Become Victims,” The Nordic Committee on Human Rights (2005) (accessed January 17, 2009)

10. Harrold-Claesson, “Confiscating Children: When Parents Become Victims”

11. Harrold-Claesson, “Confiscating Children: When Parents Become Victims”

12. Harrold-Claesson, “Confiscating Children: When Parents Become Victims”

13. “Katianne” is the name given to the mother by the Nebraska Supreme Court, which decided her case in In Re Xavier H., 740 N.W.2d 13 (Neb. 2007).

14. In re Xavier H., 740 N.W.2d at 21.

15. “Nebraska Supreme Court returns boy to mother,” Omaha World Herald (October 19, 2007) (accessed January 29, 2009).

16. “Nebraska Supreme Court returns boy to mother.”

17. In re Xavier H., 740 N.W.2d at 26.

18. Emerich Thoma, “If you lived here, you’d be home now: The business of foster care,” Issues in Child Abuse Accusations, Vol. 10 (1998) (accessed January 27, 2009).

19. Thoma, “If you lived here, you’d be home now.”

20. Melville D. Miller, “You and the Law in New Jersey ” (Rutgers University Press, 1998): 200.

21. Miller, You and the Law in New Jersey,” 200.

22. Frank J. Dyer, “Psychological Consultation in Parental Rights Cases” (The Guilford Press, 1999): 26.

23. Child Welfare League of America (CWLA), “Placements to Obtain Treatment and Services for Children,” A Family’s Guide to the Child Welfare System (2004): 5 (accessed January 27, 2009).

24. CWLA, “Placements to Obtain Treatment and Services for Children,” p. 5.

25. The National Crittenton Foundation, “Crittenton Booklet for Web,” pp. 11-12. (accessed January 28, 2009)

Parental Rights – Analysis by Article of the UNCRC – Part 8 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 18, Part 1: Government-Supervised Parenting

During our series on the UN Convention on the Rights of the Child, most of the articles we have considered have focused on the relationship between the state and the child. Article 18 is therefore unique in its emphasis on the responsibilities of parents, and the supervised relationship that these parents have with the state.

Article 18 is also one of the more complex articles in the Convention, divided into three sections that address distinct facets of the relationship between parents and the state. This week, we will focus on the first section, which says that “States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child,” and that parents are primarily responsible for their children. As parents, “the best interests of the child will be their basic concern.”

The danger of Article 18 is that it places an enforceable responsibility upon parents to make child-rearing decisions based on the “best interests of the child,” subjecting parental decisions to second-guessing at the discretion of government agents.

Obligations on Parents?

Article 18 stands out because it affects not only the relationship between the UN and the nation that ratifies the Convention, but also the relationship between private individuals and their government: a relationship that is usually changed through legislation at a local level. In fact, the UN’s Implementation Handbook for the CRC explains that “when article 18 was being drafted, the delegate from the United States of America commented that it was rather strange to set down responsibilities for private individuals, since the Convention could only be binding on ratifying governments.”

But instead of paying heed to this objection, the drafters of the CRC rejected it, making the Convention enforceable against private individuals and requiring that “parental rights be translated into principles of parental responsibilities.” The Handbook itself notes that if the actions of parents could be shown to impair the child’s physical, psychological, or intellectual development, “the parents” – not the state – “can be found to be failing in their responsibilities.” (emphasis added).

The end result is parental involvement under state supervision. According to Chris Revaz, Article 18 “recognizes that parents and legal guardians have the primary responsibility for the upbringing and development of the child, with the best interest of the child as their basic concern,” but also invests in the state “a secondary responsibility to provide appropriate assistance to parents and legal guardians in meeting their responsibilities.” Roger Levesque opines that such supervision attempts to “regulate the relationship between child and state,” essentially relegating the role of parental and familial involvement to a position of “secondary importance.”

Enforcing the “Best Interest” Standard

As a previous article in our series has already discussed, the “best interests of the child” is a significant theme in the Convention, providing “decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’.”

The inevitable result, according to Levesque, is that “by placing the burden on the State to take affirmative steps toward ensuring the fulfillment of children’s rights, the Convention assumes responsibility and invokes the State as the ensurer and protector of rights.” This point is echoed by Law Professor Bruce Hafen, who warns that the Convention’s emphasis on the “best interests of the child” creates “an arguably new standard for state intervention in intact families.” According to Hafen, legal authors in Australia have already suggested that “under the CRC, parental childrearing rights are ’subject to external scrutiny’ and ‘may be overridden’ when ‘the parents are not acting in the best interests of the child.’”

Hafen warns that this conclusion – though in opposite to America’s cultural and legal heritage – is “consistent with the CRC’s apparent intent to place children and parents on the same plane as co-autonomous persons in their relationship with the state.” This is a far cry from America’s legal heritage, which has long held that parents have a fundamental right to oversee the upbringing and education of their children, free from government control. Article 18 makes it plain, however, that under the Convention, it is the state that is ultimately responsible for the fate of its children, and has authority to supervise its parents.

Article written for ParentalRights.org by Peter Kamakawiwoole, June 24, 2008.

Sources

UN Convention on the Rights of the Child
http://www.unhchr.ch/html/menu3/b/k2crc.htm

Cris Revaz, “An Introduction to the U.N. Convention on the Rights of the Child,” in The U.N. Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications on U.S. Ratification (2006): 10-11.

Roger Levesque, International Children’s Rights Grow Up: Implications for American Jurisprudence and Domestic Policy (1994): 214.

Bruce and Jonathan Hafen, Abandoning Children to their Autonomy (1996): 461-462, 464.

United Nations Children’s Fund, Impl

Parental Rights – Analysis by Article of the UNCRC – Part 7 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 16: Privacy From Parents

During our series on the UN Convention on the Rights of the Child, a constant theme has been the recurring intervention of government power in the relationship between children and their parents. Broad discretion for the state is particularly prevalent in the Convention’s “freedom” provisions, which guarantee choices to children when it comes to expression, information, religion, and association.

Perhaps the most troubling of these “freedom” provisions is article 16, which stipulates that “no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence.” More so than any other section of the Convention, article 16 invokes the power of the government in ways previously unseen and untested in America’s legal and political history.

Paradigm Shift

The key to understanding article 16 is found in its absolute language: no child is to have his or her right to privacy violated. According to American law professor Cynthia Price Cohen, article 16 “uses the strongest obligatory language in the human rights lexicon to protect the child’s privacy rights.”

This is a strong break from American law. According to Catherine Ross, writing in the University of Pennsylvania Journal of Constitutional Law, the concept of a “right to privacy” has been used within the American context to support limited reproductive freedom for children, including the right to receive information, counseling, and contraceptives without parental consent or notification. But even in such cases, the Supreme Court has attempted to draw some sort of balance between the privacy rights of the child and the role of parents in raising and directing their children: never has the Court stated that children have an absolute right to privacy even from their parents.

Displacing Parents

In contrast, the “right to privacy” within the Convention is far broader than anything contemplated in American law or jurisprudence, bestowing an absolute right to privacy which, according to the UN Committee on the Rights of the Child in their 2004 report on Japan, includes privacy in “personal correspondence and searching of personal affects.” This includes more than just a child’s diary or letters to a pen pal: it includes e-mails composed, websites visited, and a growing plethora of other means of communication with the outside world.

Law professor Bruce Hafen notes that this strong language makes little allowance for the role of adults who are unavoidably involved in a child’s private world – namely, the child’s parents. Scholar Barbara Nauck adds that when the responsibility of parents to “guide and direct” their children comes into conflict with the right of children to have privacy, it is highly questionable whether parents will have the lawful authority to interfere with the child’s privacy.

Only the First Step

On this basis alone, law professor Richard Wilkins has warned that Article 16 has the potential to place the basic ability to discipline and monitor children – activities necessary for effective parenting – into serious doubt. In addition, the provision’s absolute guarantees could also be extended through state laws or the decisions of judges to include other “rights” guaranteed by the Convention – such as the freedom of religion, expression, or information – with devastating consequences to the authority and effectiveness of parents. It is the absolute, all-encompassing nature of article 16 that poses the real danger to both children and parents.

Please forward this message on to your friends and urge them to sign the Petition to Protect Parental Rights at http://www.parentalrights.org/join-the-fight.

Article written for ParentalRights.org by Peter Kamakawiwoole, May 12, 2008.

Sources

Cynthia Price Cohen, The Role of the United States in Drafting the Convention on the Rights of the Child (1998): 34.

Catherine Ross, An Emerging Right for Mature Minors to Receive Information (1999): 261.

UN Committee on the Rights of the Child, Concluding Observations: Japan, CRC/C/15/Add.231 (2004)

Bruce Hafen and Jonathan Hafen, Abandoning Children to their Autonomy (1996): 472.

Barbara Nauck, Implications of the United States Ratification of the UN Convention on the Rights of the Child (1994): 700.

Richard Wilkins, et. al., Why the United States Should Not Ratify the Convention on the Rights of the Child (2003): 421.

Parental Rights – Analysis by Article of the UNCRC – Part 6 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 14: Religion Is Child Abuse?

This week, we continue our series on the UN Convention on the Rights of the Child with Article 14, which says that the government shall “respect the right of the child to freedom of thought, conscience and religion,” and shall also “respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.”

Proponents of the CRC, such as law professor Jonathan Todres, has commented that Article 14 “provides for the role of parents in teaching religion to their children, while ensuring that the government does not impose restrictions on any child’s right to freedom of religion.” Nevertheless, a deeper understanding of this provision reveals that the purportedly “pro-parent” language is really another avenue for government power, not a shield to protect parental rights.

How much “direction” is too much direction?

On its face, this article may seem to support the role of parents, but such a position is merely wishful thinking. The Convention merely recognizes the parents’ primary role to “provide direction” to the child, and there is considerable disagreement on what this “direction” should entail. For example, according to Faulkner University law professor John Garman, Article 14 is one of the few clauses in the CRC that “actually brings the parents into play to ‘provide direction to the child.’”

But another CRC proponent, law professor Cynthia Price Cohen, disagrees. According to Cohen, one of the earliest drafts of Article 14 included “two paragraphs that protected the right of parents to guide the exercise of this right and to ‘respect the liberty of the child and his parents’ with regard to the child’s religious education.” When the final text was adopted, however, all language protecting the rights of parents to “ensure the religious and moral education of the child” was omitted. This omission makes no sense if the purpose of Article 14 was to protect the rights of parents to instruct their children.

Religious “indoctrination” as abuse?

The danger to parents is compounded by a growing movement among American and international academics to prevent parents from “indoctrinating” their children with religious beliefs. For example, British scientist and bestselling author Richard Dawkins recently described religious “indoctrination” of young children as a form of child abuse. “Odious as the physical abuse of children by priests undoubtedly is,” Dawkins writes, “I suspect that it may do them less lasting damage than the mental abuse of bringing them up Catholic in the first place.”

Dawkins is not alone in his analysis. In 1998, bestselling author and professor of psychology Nicholas Humphrey, teaching at New York University at the time, argued for “censorship” of parents, who have “no right to limit the horizons of their children’s knowledge, to bring them up in an atmosphere of dogma and superstition, or to insist they follow the straight and narrow paths of their own faith.”

Both authors advocate an outside solution to “protect” children from indoctrination: intervention by the government. In The God Delusion, Dawkins quotes from Humphrey, who writes that “children have a right not to have their minds addled by nonsense, and we as a society have a duty to protect them from it.” Humphrey bluntly adds that “parents’ rights have no status in ethics and should have none in law” – parenting is a “privilege” that operates within parameters set by society to protect the child’s “fundamental rights to self determination.” If parents step beyond these boundaries by indoctrinating their children, “the contract lapses – and it is then the duty of those who granted the privilege to intervene.” (emphasis added)

Some have called for international talks on whether children should be involved in religion. Innaiah Narisetti of the Center for Inquiry (a U.N. NGO) said, “The time has come to debate the participation of children in religious institutions,” continues Narisetti. “While some might see it as a matter better left to parents, the negative influence of religion and its subsequent contribution to child abuse from religious beliefs and practices requires us to ask whether organized religion is an institution that needs limits set on how early it should have access to children.” Narisetti also said that “The UN must then take a clear stand on the issue of the forced involvement of children in religious practices; it must speak up for the rights of children and not the automatic right of parents and societies to pass on religious beliefs, and it must reexamine whether an organization like the Vatican should belong to the UN”

The “fundamental interest of parents”

This aggressive censorship of parents captures the true spirit of Article 14. According to law professor Bruce Hafen, the language of Article 14 views “parents as trustees of the state who have only such authority and discretion as the state may grant in order to protect the child’s independent rights,” and is consistent with what the state deems as the child’s “evolving capacities.” Such a calloused view of parents stands in stark contrast to our own legal tradition, which has long upheld “the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.”

America’s legal heritage has consistently held that parents have a fundamental right to teach their children about religion, shielded from well-intentioned but intrusive interference from the state. The danger of Article 14 is that it disrupts this crucial balance, tipping the scales in favor of the government and those who claim to “know better” in our society. If we wish to secure these freedoms, we must act now to place parental rights into the text of our Constitution.

Please forward this message onto your friends and urge them to sign the Petition to Protect Parental Rights.

Article written by Peter Kamakawiwoole, May 5, 2008.

Sources

Jonathan Todres, “Analyzing the Opposition to the U.S. Ratification of the U.N. Convention on the Rights of the Child,” in The U.N. Convention on the Rights of the Child (2006): 24.

Cynthia Price Cohen, “Role of the United States in Drafting the Convention on the Rights of the Child,” Loyola Poverty Law Journal (1998): 30-31.

Bruce Hafen, “Abandoning Children to their Autonomy,” Harvard International Law Journal (1996): 470.

Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).

Parental Rights – Analysis by Article of the UNCRC – Part 5 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 13, part 2: No, Thank You, Mom and Dad

In an age where information is becoming easier to access every day, children face new and uncharted risks. Our American heritage has long honored the right of parents to direct their child’s access to information, recognizing that in the vast majority of circumstances, parents are best situated to monitor their child’s activities and to provide necessary guidance during the transition from childhood to adulthood. Unfortunately, this vital role is being undermined by the rising tide of international thought, far removed from our own tradition and championed by international agreements like the UN Convention on the Rights of the Child (UNCRC).

Last week, we began our discussion of Article 13 of the UNCRC by looking at its impact on what children are taught. This week, we return to Article 13 to examine the right of the child “to seek information,” and the impact this guarantee has on the relationship between children, their parents, and the state.

Article 13 is divided into two sections. The first states that “The child shall have the right to freedom of expression; this right shall include 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.” The remainder of the article clarifies that this right be restricted, but these restrictions must be provided by law and necessary to “respect the rights or reputations of others” or for “the protection of national security or of public order, or of public health or morals.”

This article focuses on the implications of a child’s “right to information.” Although our Constitution does not expressly grant such a right, there is a growing trend – both within our boarders and abroad – to grant children such rights.

Setting Children Free

Article 13 begins by guaranteeing to all children the right to seek, receive and impart all kinds of information and ideas. Although some proponents of the Convention allege that article 13 is particularly important for children who are seeking to discover more of their identities after spending years of their lives in the care of the state, there is nothing in the text which limits this provision to such a narrow meaning.

According to advocates of the CRC, such as Marian Koren, international author for the UN at the Hague, a more acceptable interpretation of article 13 would require the government to establish and support a whole host of government programs aimed at educating children, such as “advice and information services for children, free access to libraries and loans, workshops for children on topics of their interest,” and so on. According to law professor Bruce Hafen, such a “right” is a broad departure from current US law, and not only poses difficulties for parents, but also for schools, teachers, and educational administrators who have to make difficult decisions about what they teach the children entrusted to their care.

No Thank You, Mom and Dad

While article 13 allows the right of information to be restrained in order to “respect the rights or reputations of others,” this respect does not extend to the decisions of parents. As Koren writes, whenever the state feels that parents are “failing” to protect their child’s rights, “it is the duty of the state to control parents to take their responsibilities and to fulfill their tasks towards their children.” (emphasis added)

American law has long recognized the importance of parents in guiding their children to make good decisions. In 1979, for example, the U.S. Supreme Court ruled in Parham v. J.R. that “most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.”

The UNCRC shifts this recognized balance in favor of increased autonomy for the child. According to Barbara Nauck, writing in the Cleveland State Law Review, “the more assertive language of Article 13 presumably means that Article 13 would prevail where there is a conflict between the child’s desire to freely express herself and the parent’s interest in curbing that expression.” Given the arguments advanced by many of today’s child advocates, “the interpretation of the Convention that will be argued in the courts is that the parent may act as counselor, suggesting the pros and cons and possible consequences, but the final choice would be in the hands of the child.” (emphasis added)

Our Children in Harm’s Way

It does not take a parent long to imagine the Pandora’s box that would be unleashed if the final choice is placed in the hands of the child. With television and the internet opening up an almost infinite number of avenues for children to seek information, it is more important than ever for parents to have the freedom to guide their children through the journey to adulthood. Article 13, and the autonomous ideology that it perpetuates, undermines these vital efforts.

Please forward this message onto your friends and urge them to sign the Petition to Protect Parental Rights.

Article written by Peter Kamakawiwoole, April 25, 2008.

Sources

UN Convention on the Rights of the Child

Marian Koren, “The Right to Information: Too Vague to Be True?” in Monitoring Children’s Rights, Eugeen Verhellen, ed. (The Hague, 1996): 675.

Bruce & Jonathan Hafen, “Abandoning Children to Their Autonomy: The United Nations Convention on the Rights of the Child,” Harvard International Law Review (1996): 468

Parham v. J.R., 442 U.S. 584 (1979): 603.

Barbara J. Nauck, “Implications of the United States Ratification of the United Nations Convention on the Rights of the Child: Civil Rights, the Constitution and the Family,” Cleveland State Law Review (1994): 693.

Richard G. Wilkins, “Why the United States Should not Ratify the Convention on the Rights of the Child,” Saint Louis University Law Review (2003): 420-421.

Parental Rights – Analysis by Article of the UNCRC – Part 4 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 13, part 1: Homeschooling Illegal?

This week, we continue our series on the UN Convention on the Rights of the Child by considering Article 13, which states that “the child shall have the right to freedom of expression; this right shall include 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.”

The crux of this article is the child’s “right to information.” Children access information through what they are taught and what they discover on their own. This week, we will consider the Convention’s implications on what children are taught.

Homeschooling

Article 13 is far more sweeping than any right articulated by our Constitution or Supreme Court, guaranteeing all children the right to seek information of all kinds. International author and commentator Marian Koren explains that although the state should generally refrain from interfering in the family, “the State also has a positive obligation in supporting the possibilities for children to seek information or to express their views.” Ultimately, “it is the duty of the State to respect the rights of the child and his freedom to thought, conscience, belief, expression and opinion.” (emphasis in original)

Although the United States has not yet ratified the CRC, there is a growing sentiment that the state should bear the responsibility for ensuring that children are “properly educated,” instead of parents. A striking example occurred this past February, when a California court declared in In Re Rachel L. that “parents do not have a constitutional right to home school their children,” unless they are certified by the state to teach. In so ruling, the court declined to follow the Supreme Court’s 1972 decision in Wisconsin v. Yoder and its 2000 ruling in Troxel v. Granville, which guarantee parents the fundamental right to direct the upbringing and education of their children.

Whose Responsibility?

Rachel L., like Article 13, presumes that it is ultimately the state’s duty to ensure that the child’s right to information is respected. The California court quoted repeatedly from an earlier California decision in 1952, which concluded that children must be educated in traditional public or private schools, subject to state standards and regulations: anything less would “take from the state all-efficient authority to regulate the education of the prospective voting population.” (emphasis added)

The language of “all-efficient authority” is not the language of liberty. According to Dr. Martin Guggenheim, Professor of Law at New York University, “our future as a democracy depends on nurturing diversity of minds. The legal system’s insistence on private ordering of familial life ultimately guards against state control of its citizens.” There may be questions over the “best way” to educate children, but according to Guggenheim, the American answer is that “unless the answers are so clear that there is no room to disagree, parents are free to decide for themselves what they believe will best serve their children.”

Thankfully, the public outcry to this decision led California courts to decide to rehear the Rachel L. decision this summer, allowing parents – at least for the moment – to continue teaching their children at home. But only time will tell whether the California courts will have a change of heart, or whether the damaging decision will simply be repeated. The strong words of the first Rachel L. decision suggest that this is a real possibility.

America’s legal heritage has consistently held that parents, not the state, have the right to decide whether their children would best benefit from public schooling, a private school, or even learning at home, but this recent decision from California highlights just how tenuous this freedom can be. If we wish to secure these freedoms, we must act now to place parental rights beyond the reach of judges</U? by protecting them within the Constitution.

Article written for ParentalRights.org by Peter Kamakawiwoole, April 21, 2008.

Sources

Marian Koren, “The Right to Information: Too Vague to Be True?” in Monitoring Children’s Rights, Eugeen Verhellen, ed. (The Hague: Martinus Nijhoff Publishers, 1996): 675.

In Re Rachel L., 73 Cal.Rptr.3d 77 (Ca.App. 2008)(VACATED)

Martin Guggenheim, What’s Wrong with Children’s Rights (2005): 24-27, 43.

Parental Rights – Analysis by Article of the UNCRC – Part 3 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 12: Suing Mom and Dad?

Last week, we looked at how Article 9 of the UN Convention on the Rights of the Child gives the government authority to intervene in the decisions of parents simply by appealing to the child’s “best interests.” This week, we continue our in-depth analysis of the CRC by examining Article 12, which says: “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

Which Children?

At the outset, three key observations are readily apparent. First, this right protects a child who is “capable of forming his or her own view,” which must be given “due weight,” in accordance with his or her age and maturity. Second, our government (“States Parties”) would be responsible for ensuring that this right is respected, both in public places and in private realms, such as the home. Finally, this responsibility extends to “all matters affecting the child.” These three tenets place incredible discretion in the hands of the government to challenge – and even reverse – the decisions of parents.

Although the Convention claims to protect children who are “capable of forming their own views,” this phrase is incredibly ambiguous. Indeed, the United Nations Committee on the Rights of the Child recognized this ambiguity in 2006, when it asked for input from all UN member-states on the meaning of Article 12. A report by India’s Committee for Legal Aid to Poor suggested that the right to be heard extends to “the decision of the families and should not be restricted to Judicial and administrative proceedings only.” That same year, the Canadian Child Care Federation asserted that “Children need to be ‘heard’ during all stages of development, beginning in infanthood.” (emphasis in original)

“Suing” Your Parents?

In addition, Article 12 applies not only to legal and judicial proceedings involving a child, but also to decisions made within the privacy of a family. According to Dr. Geraldine van Bueren, Professor of International Law at the University of London and a lead-drafter of the CRC, “the duty on the State Party is to assure the right to freedom of expression in ‘all matters affecting the child’ and as a result places duties on the state in relation to matters traditionally relegated to the private sphere.” By referencing “all matters affecting the child,” van Bueren writes, “there is no longer a traditional area of exclusive parental or family decision-making.”

Although the CRC has not been ratified by the United States, our own courts have nevertheless begun to allow children to actively assert their “right to be heard.” The Florida State Supreme Court ruled in 2000 that a fifteen-year-old boy in foster care was entitled to a judicial hearing and a lawyer to contest his placement in a mental health institution. It makes sense to grant such a right to a fifteen-year-old who does not have parents and is in the custody of the state, but in 2003, the Florida court extended its ruling to say that children in foster care were entitled to legal hearings and appointment of a lawyer, in order to give the child a “meaningful opportunity to be heard.” Although the court did not say “all children,” it seems reasonable to infer that this legal standard could be applied to children well under fifteen years old.

The result of this and similar rulings has been children – some far younger than fifteen – who are successfully suing their own parents under the direction of a relative or government worker. As recently as June 2007, a nine-year-old boy in Minnesota sued both his parents through a government-appointed guardian ad litem and won $100,000 from their insurance company for injuries due to the “faulty installation” of his car seat. Children and even infants in states like Kansas, Florida, and New Hampshire have also successfully sued their parents for being involved in automobile accidents, being hit by a car in a parking lot, and even for prenatal injuries suffered when the mother was hit by an oncoming vehicle because she did not use a crosswalk.

Children in Harm’s Way

These cases illustrate the danger that “right to be heard” poses to children, especially to infants and young children, who are often completely unaware of what they are doing when they “sue” a parent. According to Dr. Martin Guggenheim, Professor of Law at New York University and President of the National Coalition for Child Protection Reform (NCCPR), the modern “children’s rights movement” encourages litigation to enforce children’s rights, but fails to recognize that such litigation is “used more often than not as an opportunity to ‘take it to the judge,’” rather than to protect children. Thus, “more children are enmeshed in legal proceedings than would have been imaginable a generation ago,” as adults seek to invoke their children’s rights to “gain the upper hand” against an ex-wife, corporation, or auto insurance company.

The danger of Article 12 is that it grants the government broad, discretionary legal authority, to protect the child’s nebulous “right to be heard” at all times when the child’s interests are involved. Thankfully, our courts have not yet adopted this philosophy in “all matters affecting the child,” but if the CRC is ratified or imposed on the United States through customary international law, that will change.

America’s experience has opened parents up to extensive litigation, while often using the child’s “interests” as a way to claim a sort of “moral high ground” in disputes that are really between adults. When the bonds between children and their families are tried in the fires of litigation, they are often scorched in the process. Whenever we empower the government to be the arbiter, we are risking the welfare of our children and families.

Please forward this message to your friends and urge them to sign the Petition to Protect Parental Rights at http://www.parentalrights.org/join-the-fight.

Article written for ParentalRights.org by Peter Kamakawiwoole, March 5, 2008.

The original article can be found here: http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC={29FA17E8-B22C-461E-9B69-DEAA49DA0B9D}

Sources

UN Convention on the Rights of the Child
http://www.unhchr.ch/html/menu3/b/k2crc.htm

Florida Supreme Court gives “silenced” children the right to be heard
http://www.floridasupremecourt.org/decisions/pre2004/bin/sc00-2044.pdf

Committee for Legal Aid to Poor, “The Right of the Child to be Heard” (India)
http://www.crin.org/docs/GDD_2006_CLAP.doc

Canadian Child Care Federation, “To Speak, Participate and Decide” (Canada)

Click to access Right_to_be_Heard.pdf

Geraldine van Bueren, The International Law of Children’s Rights (1995): 137.

Harrison v. Harrison, 733 N.W.2d 451 (Minn. S.C. 2007); for additional cases involving children suing parents, see Nocktonick v. Nocktonick, 227 Kan. 758 (Kan. S.C. 1980) and Bonte for Bonte v. Bonte, 616 A.2d 464 (New Hamp. S.C. 1992).

Martin Guggenheim, What’s Wrong with Children’s Rights (2005): 245.

Parental Rights – Analysis by Article of the UNCRC – Part 2 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that continuing analysis:

Article 9: A Child’s Right to a Family — Almost

Last week, we began our series on the UN Convention on the Rights of the Child (UNCRC) by looking at the Convention’s central focus on the “best interests of the child,” which allows the government to substitute its will for that of the parents. This principle is significant as we turn our attention to one of the first rights that the CRC grants to children: the right to remain in their family.

THE RIGHT TO A FAMILY… ALMOST

At first glance, Article 9 of the CRC may appear harmless and even idyllic: “a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.” But despite references to “competent authorities” and “judicial review,” a closer examination quickly reveals that the emphasis on the child’s “best interests” grants the government broad latitude to intervene in the family.

There are many broad and diverse opinions when it comes to what makes a “good parent.” Parents may read a popular parenting book, attend a parenting class, or turn to their own parents or a trusted mentor for advice. Likewise, there is also a broad range of opinions when it comes to when a child should be removed from the home. Clearly a child who is being sexually or physically abused should be saved from that circumstance, but what about more complex issues? Should children be separated from their parents if they are spanked? What about parents who are disabled or have a physical handicap? What about families who are too poor to provide the best quality of living for their children? There are many answers that could be given about what is in the “best interests of the child,” depending on the person who is being asked.

This is why the Supreme Court ruled in 1993 that the “best interests” test could only be applied when a family is broken, such as in divorce proceedings when the dispute is between two parents. When the family is intact, however, courts are required to prove that a parent is “unfit” to raise the children, which requires a state to satisfy a much higher burden of proof. Article 9 destroys this distinction and uses the same test for families that are broken and families that are intact. By analogy, the “best interests” standard treats the government as if it were the other parent in a divorce-proceeding, placed on the same footing as the child’s natural parents in a battle for custody of the child.

TRAMPLING ON PARENTAL RIGHTS

In 1980, the Supreme Court of Washington heard the case of a fifteen-year-old girl who had enlisted state social workers in her quest to live separately from her parents. The girl had resisted her parents’ efforts to discipline her through grounding, and claimed that there was “conflict within her home,” though when asked by a judge about the nature of this conflict, the girl simply replied: “I just feel that there’s a communication gap there.” In an imposing display of judicial power, the court ruled that the conflict between the parents and the child was so severe that it justified the child being placed under the custody of the state, even though the parents were fit and their behavioral standards were not unreasonable.

Twenty-eight years later, families in the United States are still at risk of losing their children if the government believes it can do a better job. In 2004, a social worker hastily accused the parents of one-year-old Julia of child abuse after learning that she had suffered fifteen bone fractures in a period of five months. The parents had no previous record of abuse, the government never presented evidence that they had ever harmed their daughter, and several medical experts testified that the little girl had a brittle bone disease that was responsible for the fractures. But despite the evidence, the family court took little Julia away from her family and placed her in a foster home, citing her “best interests.” Julia remained in foster care until this past December, when her family finally won her back. She is now four-years-old, and has spent the last three years living with strangers in a foster home, but her family is overjoyed to finally welcome her home.

More recently an autistic boy was forcibly removed from his home despite the evidence being “clear that the parents have always stood by and tried to help their son.” Read about this tragic story on our blog here.

WHO DECIDES?

Julia’s happy ending was three long years in the coming – all because of government officials who claimed to act in the “best interests of the child,” without bothering to prove that Julia’s parents were unfit to raise her. Her story is a warning of the insidious sub-plot that runs through Article 9 of the CRC, which grants the government a dangerous power over the lives of its citizens.

But Julila’s story is more than just a warning. It is also a reminder that the battle for parental rights is more than just a battle to change the Constitution: it is a battle to protect real people, to save young lives that are in no danger, except from the government that claims to protect them. Innocent children and loving parents deserve far better than justice that comes three years too late.

Please forward this message onto your friends and urge them to sign the Petition to Protect Parental Rights.

Article written by Peter Kamakawiwoole, Feb.25, 2008.

The original article can be found here: http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC={2169B234-8F84-4613-92AE-579B56A0BE77}
Sources

In Re Sumey, 94 Wash. 2d 757 (Wash. S.C. 1980)

UN Convention on the Rights of the Child
http://www.unhchr.ch/html/menu3/b/k2crc.htm

Family wins custody battle in court
http://www.timesunion.com/AspStories/story.asp?storyID=647184&category=REGION&newsdate=12/14/2007

Autistic Boy Removed from his Home Because the Government Disagreed with the Parents

Parental Rights – Analysis by Article of the UNCRC – Part 1 of 9

Last year the Parental Rights.org group analyzed article by article the impact of ratification of the
United Nations Convention on Rights of the Child (UNCRC) would have on Parental Rights and Children’s Rights in the United States.

Here is that analysis:

Article 3: The “Best Interest” Principle

It’s usually looked upon as a positive means of holding countries accountable to protect children. But the United Nations Convention on the Rights of the Child (UNCRC) is so much more than that.

When the UNCRC was brought up for ratification in 1995, the core group of Senators in opposition concluded that this treaty marked a significant departure from the originally constituted relationship between state and child. They found, in fact, that it was literally incompatible with the right of parents to raise their children as well as a wholesale giveaway of U.S. sovereignty.

But why?

Widespread concerns about the UNCRC stem from the treaty’s repeated emphasis on one key principle used to guide all decisions affecting children: consideration of the “best interests of the child.” This principle underlies all of the rights found in the Convention.

Article 3 of the CRC provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

In other words, policies affecting children at all levels of society and government should have the child’s best interest as the primary concern.

The trouble occurs when this principle appears as a guiding principle for parents in article 18(1), which states that “Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

Who knows best?

The Convention’s emphasis on the “best interests” principle is a sharp break from American law.

In the 1993 case of Reno v. Flores, the U.S. Supreme Court held that “the ‘best interests of the child’ is not the legal standard that governs parents’ or guardians’ exercise of their custody.” In the 2000 case of Troxel v. Granville, the Court struck down a grandparent visitation statute because decisions about the child were made “solely on the judge’s determination of the child’s best interests,” without regard to the wishes of the parent.

The Court’s decisions in Reno and Troxel reflect a fundamental tenet of American family law, which recognizes that parents typically act in the best interests of their children. Indeed, “United States case law is replete with examples of parents fighting for the best interests of their children,” ranging from a child’s right to an education to the right of personal injury compensation. Except in cases where a parent has been proven to be “unfit,” American law presumes that the parent is acting in the best interests of the child, and defers to that parent’s decision.

The UNCRC’s Brave New World

But the UN Convention on the Rights of the Child changes all of that. The treaty supplants this traditional presumption in favor of parents with a new presumption in favor of the state.

According to Geraldine van Bueren, an international scholar who assisted in the drafting of the CRC, the language of “best interests provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’, providing it is based on considerations of the best interests of the child.”

So instead of placing the burden of proof on the government to prove that a parent is unfit, the Convention places the burden of proof on – yes, parents. Any parent who claims that other interests might just be more important than the state’s characterization of the “best interest” of the child could end up battling the state to protect their rights as a parent.

Where do we go from here?

There is a solution to this dilemma. The strongest, most effective way of protecting children and parents from an alarming state-based agenda is to amend the Constitution to protect parental rights. This can only take place through the concerted efforts of millions of dedicated parents across the United States.

Two immediate action items

Maybe you’ve already signed the petition to protect parental rights. If so, we encourage you to take the next step of telling your friends about this important issue. And if you haven’t yet joined the campaign, consider joining today.

Article written for ParentalRights.org by Peter Kamakawiwoole, Feb. 12, 2008.

The original article can be found here: http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC={1655E4C8-EF5D-4222-9F97-558DBDB04D25}