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.
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.
An In-Depth Look at Article 14 of the UN Convention on the Rights of the Child
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.
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.
Part I of an In-depth Look at Article 18 of the UN Convention on the Rights of the Child
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. Read the rest of this entry »
