Children's rights are the human rights of children with particular attention to the rights of special protection and care afforded to the young,[1] 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.[2] Interpretations of children's rights range from allowing children the capacity for autonomous action to the enforcement of children being physically, mentally and emotionally free from abuse, though what constitutes "abuse" is a matter of debate. Other definitions include the rights to care and nurturing.[3]
"A child is any human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier."[4] According to Cornell University, a child is a person, not a subperson, and the parent has absolute interest and possession of the child, but this is very much an American view. The term "child" does not necessarily mean minor but can include adult children as well as adult nondependent children.[5] There are no definitions of other terms used to describe young people such as "adolescents", "teenagers," or "youth" in international law,[6] but the children's rights movement is considered distinct from the youth rights movement.
The field of children's rights spans the fields of law, politics, religion, and morality.
As minors by law children do not have autonomy or the right to make decisions on their own for themselves in any known jurisdiction of the world. Instead their adult caregivers, including parents, social workers, teachers, youth workers and others, are vested with that authority, depending on the circumstances.[7] Some believe that this state of affairs gives children insufficient control over their own lives and causes them to be vulnerable.[8] Louis Althusser has gone so far as describe this legal machinery, as it applies to children, as "repressive state apparatuses".[9]
Structures such as government policy have been held by some commentators to mask the ways adults abuse and exploit children, resulting in child poverty, lack of educational opportunities, and child labor. On this view, children are to be regarded as a minority group towards whom society needs to reconsider the way it behaves.[10] However, there is no evidence that such views are widely shared in society.[citation needed]
Researchers have identified children as needing to be recognized as participants in society whose rights and responsibilities need to be recognized at all ages.[11]
Consensus on defining children's rights has become clearer in the last fifty years.[12] A 1973 publication by Hillary Clinton (then an attorney) stated that children's rights were a "slogan in need of a definition".[13] 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.[14]
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.[15]
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.[14] 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 and recreation. 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 behavior, 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.[16][17]
In a similar fashion, the Child Rights Information Network, or CRIN for short, categorizes rights into two groups:[18][19]
- 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.[1] Human Rights Watch, an international advocacy organization, includes child labor, juvenile justice, orphans and abandoned children, refugees, street children and corporal punishment.[20]
Scholarly study generally focuses children's rights by identifying individual rights. The following rights "allow children to grow up healthy and free":[21]
Other issues affecting children's rights include the military use of children, sale of children, child prostitution and child pornography.
Main article:
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."[22] 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.
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.[23][24] There have been theories offered that provide parents with rights-based practices that resolve the tension between "commonsense parenting" and children's rights.[25] The issue is particularly relevant in legal proceedings that affect the potential emancipation of minors, and in cases where children sue their parents.[26]
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.[27]
The 1796 publication of Thomas Spence's Rights of Infants is among the earliest English-language assertions of the rights of children. Throughout the 20th century 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.
The opposition to children's rights far outdates any current trend in society, with recorded statements against the rights of children dating to the 13th century and earlier.[28] 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.[29] 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.[30] The majority of opposition stems from concerns related to national sovereignty, states' rights, the parent-child relationship.[31] Financial constraints and the "undercurrent of traditional values in opposition to children's rights" are cited, as well.[32] The concept of children's rights has received little attention in the United States.[33]
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 address 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, drafted by Eglantyne Jebb and her sister Dorothy Buxton in London, England in 1919, 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.
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.[34] The CRC is the most widely ratified human rights treaty with 190 ratifications. Somalia and the USA are the only two countries which have not ratified the CRC. The CRC is based on four core principles,[35] namely the principle of non discrimination, the best interests of the child, the right to life, survival and development, and considering the views of the child in decisions which affect them (according to their age and maturity). 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.[36]
Vienna Declaration and Programme of Action urges at Section II para 47, all nations to undertake measures to the maximum extent of their available resources, with the support of international cooperation, to achieve the goals in the World Summit Plan of Action. And calls on States to integrate the Convention on the Rights of the Child into their national action plans. By means of these national action plans and through international efforts, particular priority should be placed on reducing infant and maternal morality rates, reducing malnutrition and illiteracy rates and providing access to safe drinking water and basic education. Whenever so called for, national plans of action should be devised to combat devastating emergencies resulting from natural disasters and armed conflicts and the equally grave problem of children in extreme poverty. Further para 48 urges all states, with the support of international cooperation, to address the acute problem of children under especially difficult circumstances. Exploitation and abuse of children should be actively combated, including by addressing their root causes. Effective measures are required against female infanticide, harmful child labour, sale of children and organs, child prostitution, child pornography, as well as other forms of sexual abuse.[37] This gave an influence to adoptions of Optional Protocol on the Involvement of Children in Armed Conflict and Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.
A variety of enforcement organizations and mechanisms exist to ensure children's rights. 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 politicized 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.
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.[5] 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 neighbor. 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.[38]
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."[39] Other issues raised in American children's rights advocacy include children's rights to inheritance in same-sex marriages and particular rights for youth.
A report filed by the President of the INGO Conference of the Council of Europe, Annelise Oeschger finds that children and their parents are subject to United Nations, European Union and UNICEF human rights violations. Of particular concern is the German (and Austrian) agency, Jugendamt (German: Youth office) that often unfairly allows for unchecked government control of the parent-child relationship, which have resulted in harm including torture, degrading, cruel treatment and has led to children's death. The problem is complicated by the nearly "unlimited power" of the Jugendamt officers, with no processes to review or resolve inappropriate or harmful treatment. By German law, Jugendamt officers are protected against prosecution. Jugendamt (JA) officers span of control is seen in cases that go to family court where experts testimony may be overturned by lesser educated or experienced JA officers; In more than 90% of the cases the JA officer's recommendation is accepted by family court. Officers have also disregarded family court decisions, such as when to return children to their parents, without repercussions. Germany has not recognized related child-welfare decisions made by the European Parliamentary Court that have sought to protect or resolve children and parental rights violations.[40]
- ^ a b "Children's Rights", Amnesty International. Retrieved 2/23/08.
- ^ "Convention on the Rights of the Child". United Nations. 1989-11-20. http://www2.ohchr.org/english/law/crc.htm. Retrieved 2010-09-29.
- ^ Bandman, B. (1999) Children's Right to Freedom, Care, and Enlightenment. Routledge. p 67.
- ^ (1989) "Convention on the Rights of the Child", United Nations. Retrieved 2/23/08.
- ^ a b "Children's Rights", Cornell University Law School. Retrieved 2/23/08.
- ^ "Children and youth", Human Rights Education Association. Retrieved 2/23/08.
- ^ Lansdown, G. "Children's welfare and children's rights," in Hendrick, H. (2005) Child Welfare And Social Policy: An Essential Reader. The Policy Press. p. 117
- ^ Lansdown, G. (1994). "Children's rights," in B. Mayall (ed.) Children's childhood: Observed and experienced. London: The Falmer Press. p 33.
- ^ Jenks, C. (1996) "Conceptual limitations," Childhood. New York: Routledge. p 43.
- ^ Thorne, B. (1987) "Re-Visioning Women and Social Change: Where Are the Children?" Gender & Society 1(1) p. 85–109.
- ^ Lansdown, G. (1994). "Children's rights," in B. Mayall (ed.) Children's childhood: Observed and experienced. London: The Falmer Press. p 34.
- ^ Franklin, B. (2001) The new handbook of children's rights: comparative policy and practice. Routledge. p 19.
- ^ Rodham, H. (1973). "Children Under the Law". Harvard Educational Review 43: 487–514.
- ^ a b Mangold, S.V. (2002) "Transgressing the Border Between Protection and Empowerment for Domestic Violence Victims and Older Children: Empowerment as Protection in the Foster Care System," New England School of Law. Retrieved 4/3/08.
- ^ Ahearn, D., Holzer, B. with Andrews, L. (2000, 2007) Children's Rights Law: A Career Guide. Harvard Law School. Retrieved 2/23/08.
- ^ "Respecting children's rights at home", Children and Families in Canada. Retrieved 2/23/08.
- ^ (1997) "Children's rights in the Canadian context", Interchange. 8(1–2). Springer.
- ^ "A-Z of Children's Rights", Children's Rights Information Network. Retrieved 2/23/08.
- ^ Freeman, M. (2000) "The Future of Children's Rights," Children & Society. 14(4) p 277-93.
- ^ "Children's Rights", Human Rights Watch. Retrieved 2/23/08.
- ^ Calkins, C.F. (1972) "Reviewed Work: Children's Rights: Toward the Liberation of the Child by Paul Adams", Peabody Journal of Education. 49(4). p. 327.
- ^ "Children's Rights", Stanford Encyclopedia of Philosophy. Retrieved 2/23/08.
- ^ Brownlie, J. and Anderson, S. (2006) "'Beyond Anti-Smacking': Rethinking parent–child relations," Childhood. 13(4) p 479-498.
- ^ Cutting, E. (1999) "Giving Parents a Voice: A Children's Rights Issue," Rightlines. 2 ERIC #ED428855.
- ^ Brennan, S. and Noggle, R. (1997) "The Moral Status of Children: Children's Rights, Parent's Rights, and Family Justice," Social Theory and Practice. 23.
- ^ Kaslow, FW (1990) Children who sue parents: A new form of family homicide? Journal of Marital and Family Therapy. 16(2) p 151–163.
- ^ "What is equal shared parenting?" Fathers Are Capable Too: Parenting Association. Retrieved 2/24/08.
- ^ Starr, RH (1975) Children's Rights: Countering the Opposition. Paper presented at the 83rd Annual Meeting of the American Psychological Association in Chicago, Illinois, Aug. 30-Sept. 3, 1975. ERIC ID# ED121416.
- ^ DeLamater, J.D. (2003) Handbook of Social Psychology. Springer. p 150.
- ^ Lansdown, G. (1994). "Children's rights," in B. Mayall (ed.) Children's childhood: Observed and experienced. London: The Falmer Press. (p 33-34).
- ^ "Frequently Asked Questions about Children's Rights", Amnesty International USA. Retrieved 2/24/08.
- ^ Covell, K. and Howe, R.B. (2001) The Challenge of Children's Rights for Canada. Wilfrid Laurier University Press. p 158.
- ^ Mason, M.A. (2005) "The U.S. and the international children's rights crusade: leader or laggard?" Journal of Social History. Summer.
- ^ Convention on the Rights of the Child, UNICEF. Retrieved 4/3/08.
- ^ Convention on the Rights of the Child
- ^ Arts, K, Popvoski, V, et al. (2006) International Criminal Accountability and the Rights of Children. "From Peace to Justice Series". London: Cambridge University Press. ISBN 978-90-6704-227-7.
- ^ Vienna Declaration and Programme of Action. Section II, para 46 & 47
- ^ "Children's Rights Under the Constitution Discussed at the National Constitution Center," Retrieved 2/27/08.
- ^ "AAAA Position on Children's Rights in Adoption". http://www.adoptionattorneys.org/information/children_rights.htm. Retrieved 27 February 2008.
- ^ League for Children's Rights Individual UPR Submission: Germany. February 2009. Submitted by Bündnis RECHTE für KINDER e.V. and supported by President of the INGO Conference of the Council of Europe, Annelise Oeschger. Retrieved December 27, 2011.
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