Children's rights
Background Information
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Theoretical distinctions
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Human rights
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Other groups of rights
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Children's rights are the human rights of children with particular attention to the rights of special protection and care afforded to the young, including their right to association with both Biological parents, human identity as well as the basic needs for food, universal state-paid education, health care and criminal laws appropriate for the age and development of the child. Applications of children's rights range from allowing children to do whatever they wish to the enforcement of children being physically, mentally and emotionally free from abuse. Other definitions include the rights to care and nurturing.
"A child is any human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier." According to Cornell University, a child is a person, not a subperson, and the parent has absolute interest and possession of the child. The term "child" does not necessarily mean minor but can include adult children as well as adult nondependent children. There are no definitions of other terms used to describe young people such as " adolescents", "teenagers," or " youth" in international law.
The field of children's rights spans the fields of law, politics, religion, and morality.
Rationale
As minors by law children do not have autonomy or the right to make decisions on their own for themselves. Instead their adult caregivers, including parents, social workers, teachers, youth workers and others, are vested with that authority depending on the circumstance the child is in. As applied to children these legal apparatuses are termed as "repressive state apparatuses", a concept which was originally coined by Louis Althusser.
Research has found that because of these legal structures children themselves feel powerless and with little control over their own lives, and believe that the power of this structure, as opposed to their age or developmental ability, causes them to be vulnerable. Structures such as government policy have been found to mask the ways adults abuse and exploit children, resulting in child poverty, lack of educational opportunities, and child labor. Research has also identified children as a minority group towards whom society needs to reconsider the way it behaves.
Researchers have identified children as needing to be recognized as participants in society whose rights and responsibilities need to be recognized at all ages.
Historic definitions of children's rights
Consensus on defining children's rights has become clearer in the last twenty years. A 1973 publication by Hillary Clinton (then an attorney) stated that children's rights were a "slogan in need of a definition". According to some researchers, the notion of children’s rights is still not well defined, with at least one proposing that there is no singularly accepted definition or theory of the rights held by children.
Children’s rights law is defined as the point where the law intersects with a child’s life. That includes juvenile delinquency, due process for children involved in the criminal justice system, appropriate representation, and effective rehabilitative services; care and protection for children in state care; ensuring education for all children regardless of their origin, race, gender, disabilities, or abilities, and; health care and advocacy.
Types of rights
Children's rights are defined in numerous ways, including a wide spectrum of civil, cultural, economic, social and political rights. Rights tend to be of two general types: those advocating for children as autonomous persons under the law and those placing a claim on society for protection from harms perpetrated on children because of their dependency. These have been labeled as the right of empowerment and as the right to protection. One Canadian organization categorizes children's rights into three categories:
- Provision: Children have the right to an adequate standard of living, health care, education and services, and to play. These include a balanced diet, a warm bed to sleep in, and access to schooling.
- Protection: Children have the right to protection from abuse, neglect, exploitation and discrimination. This includes the right to safe places for children to play; constructive child rearing behaviour, and acknowledgment of the evolving capacities of children.
- Participation: Children have the right to participate in communities and have programs and services for themselves. This includes children's involvement in libraries and community programs, youth voice activities, and involving children as decision-makers.
In a similar fashion, the Child Rights Information Network, or CRIN for short, categorizes rights into two groups:
- Economic, social and cultural rights, related to the conditions necessary to meet basic human needs such as food, shelter, education, health care, and gainful employment. Included are rights to education, adequate housing, food, water, the highest attainable standard of health, the right to work and rights at work, as well as the cultural rights of minorities and indigenous peoples.
- Environmental, cultural and developmental rights, which are sometimes called " third generation rights," and including the right to live in safe and healthy environments and that groups of people have the right to cultural, political, and economic development.
Amnesty International openly advocates four particular children's rights, including the end to juvenile incarceration without parole, an end to the recruitment of military use of children, ending the death penalty for people under 21, and raising awareness of human rights in the classroom. Human Rights Watch, an international advocacy organization, includes child labor, juvenile justice, orphans and abandoned children, refugees, street children and corporal punishment.
Scholarly study generally focuses children's rights by identifying individual rights. The following rights "allow children to grow up healthy and free":
- Freedom of speech
- Freedom of thought
- Freedom from fear
- Freedom of choice and the right to make decisions
- Ownership over one's body
The Canadian Children's Rights Council identifies several other issues affecting children's rights, including fetal rights, infanticide, child abandonment, child identity rights, paternity fraud, paternity testing, age of consent, shaken baby syndrome, genital mutilation, bullying, corporal punishment, parental alienation, children's rights in family law, youth suicide, anorexia nervosa, ADHD, smoking, and childhood pregnancy. Other issues affecting children's rights include the sale of children, child prostitution and child pornography.
Difference between children's rights and youth rights
"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." Within the youth rights movement, it is believed that the key difference between children's rights and youth rights is that children's rights supporters generally advocate the establishment and enforcement of protection for children and youths, while youth rights (a far smaller movement) generally advocates the expansion of freedom for children and/or youths and of rights such as suffrage.
Parenting and children's rights
Parenting is commonly identified as an essential children's right. This includes the notion that children should not be denied relationships and benefits provided by the relationships and upbringing afforded by their biological parents. The only exception is unless the government must interfere for the purpose of protecting a child from parental abuse or neglect. These cases are generally addressed by an immediate judicial review with the caveat that "all interested parties shall be given an opportunity to participate in the proceedings and make their views known".
Parents affect the lives of children in a unique way, and as such their role in children's rights has to be distinguished in a particular way. Particular issues in the child-parent relationship include child neglect, child abuse, freedom of choice, corporal punishment and child custody. There have been theories offered that provide parents with rights-based practices that resolve the tension between "commonsense parenting" and children's rights. The issue is particularly relevant in legal proceedings affect the potential emancipation of minors, and in cases where children sue their parents.
A child's rights to a relationship with both their parents is increasingly recognized as an important factor for determining the best interests of the child in divorce and child custody proceedings. Some governments have enacted laws creating a rebuttable presumption that shared parenting is in the best interests of children.
Movement
The 1796 publication of Thomas Spence's The Rights of Infants is among the earliest English-language assertions of the rights of children. Throughout the 1900s children's rights activists organized for homeless children's rights and public education. The 1927 publication of The Child's Right to Respect by Janusz Korczak strengthened the literature surrounding the field, and today dozens of international organizations are working around the world to promote children's rights.
Opposition
The opposition to children's rights far outdates any current trend in society, with recorded statements against the rights of children dating to the 1200s and earlier. Opponents to children's rights believe that young people need to be protected from the adultcentric world, including the decisions and responsibilities of that world. In the dominate adult society, childhood is idealized as a time of innocence, a time free of responsibility and conflict, and a time dominated by play. The majority of opposition stems from concerns related to national sovereignty, states' rights, the parent-child relationship. Financial constraints and the "undercurrent of traditional values in opposition to children's rights" are cited, as well. The concept of children's rights has received little attention in the United States.
International law
The Universal Declaration of Human Rights is seen as a basis for all international legal standards for children's rights today. There are several conventions and laws that addressing children's rights around the world. A number of current and historical documents affect those rights, including the 1923 Declaration of the Rights of the Child, endorsed by the League of Nations and adopted by the United Nations in 1946. It later served as the basis for the Convention on the Rights of the Child.
Convention on the Rights of the Child
The United Nations' 1989 Convention on the Rights of the Child, or CRC, is the first legally binding international instrument to incorporate the full range of human rights—civil, cultural, economic, political and social rights. Its implementation is monitored by the Committee on the Rights of the Child. National governments that ratify it commit themselves to protecting and ensuring children's rights, and agree to hold themselves accountable for this commitment before the international community. The CRC, along with international criminal accountability mechanisms such as the International Criminal Court, the Yugoslavia and Rwanda Tribunals, and the Special Court for Sierra Leone, is said to have significantly increased the profile of children's rights worldwide.
The most controversial tenets of the Convention are the participatory rights granted to children. The Convention champions youth voice in new ways. Article 12 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 ... the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child..."
The USA and Somalia are the only countries which have failed to ratify that agreement. Most often Americans dismiss the CRC with the reasoning that the nation already has in place everything the treaty espouses, and that it would make no practical difference. Much of the opposition to children's rights in the United States is currently expressed towards the Convention on the Rights of the Child, with US President George W. Bush explaining in 2001:
- "The Convention on the Rights of the Child may be a positive tool for promoting child welfare for those countries that have adopted it. But we believe the text goes too far when it asserts entitlements based on economic, social and cultural rights.... The human rights-based approach... poses significant problems as used in this text."
Several conservative religious organizations in the United States oppose parts of the Convention on the Rights of the Child. These organizations include the Christian Coalition, Concerned Women for America, Eagle Forum, Family Research Council, Focus on the Family, the John Birch Society, the National Centre for Home Education, Home School Legal Defense Association and the Rutherford Institute. The United States Senate has repeatedly rebuffed attempts to ratify the agreement as well, with 26 senators signing a 1995 resolution stating,
- "...the Convention’s intrusion into national sovereignty was manifested by the Convention’s 1995 committee report faulting the United Kingdom for permitting parents to make decisions for their children without consulting those children... The President should not sign and transmit to the Senate that fundamentally flawed convention."
Other religious and social organizations opponents oppose the Convention on the basis of parental rights. According to one organization the CRC, "is capable of attacking the very core of the child-parent relationship, removing parents from their central role in the growth and development of a child, and replacing them with the long arm of government supervision within the home."
Enforcement
A variety of enforcement organizations and mechanisms exist to ensure children's rights and the successful implementation of the [[Union. They include the Child Rights Caucus for the United Nations General Assembly Special Session on Children. It was set up to promote full implementation and compliance with the Convention on the Rights of the Child, and to ensure that child rights were given priority during the UN General Assembly Special Session on Children and its Preparatory process. The United Nations Human Rights Council was created "with the hope that it could be more objective, credible and efficient in denouncing human rights violations worldwide than the highly politicised Commission on Human Rights." The NGO Group for the Convention on the Rights of the Child is a coalition of international non-governmental organisations originally formed in 1983 to facilitate the implementation of the United Nations Convention on the Rights of the Child.
Many countries around the world have children's rights ombudspeople or children's commissioners whose official, governmental duty is to represent the interests of the public by investigating and addressing complaints reported by individual citizens regarding children's rights. Children's ombudspeople can also work for a corporation, a newspaper, an NGO, or even for the general public.
United States law
Children are generally afforded the basic rights embodied by the Constitution, as enshrined by the Fourteenth Amendment to the United States Constitution. The Equal Protection Clause of that amendment is to apply to children, born within a marriage or not, but excludes children not yet born. This was reinforced by the landmark US Supreme Court decision of In re Gault. In this trial 15-year-old Gerald Gault of Arizona was taken into custody by local police after being accused of making an obscene telephone call. He was detained and committed to the Arizona State Industrial School until he reached the age of 21 for making an obscene phone call to an adult neighbour. In an 8-1 decision, the Court ruled that in hearings which could result in commitment to an institution, people under the age of 18 have the right to notice and counsel, to question witnesses, and to protection against self-incrimination. The Court found that the procedures used in Gault's hearing met none of these requirements.
There are other concerns in the United States regarding children's rights. The American Academy of Adoption Attorneys is concerned with children's rights to a safe, supportive and stable family structure. Their position on children's rights in adoption cases states that, "children have a constitutionally based liberty interest in the protection of their established families, rights which are at least equal to, and we believe outweigh, the rights of others who would claim a 'possessory' interest in these children." Other issues raised in American children's rights advocacy include children's rights to inheritance in same-sex marriages and particular rights for youth.
