Children's rights orthe rights of children are a subset ofhuman rights with particular attention to the rights of special protection and care afforded to minors.[1] The 1989Convention on the Rights of the Child (CRC) defines a child as "any human being below the age of eighteen years, unless under the law applicable to the child,majority is attained earlier."[2] Children's rights includes their right to association with bothparents,human identity as well as the basic needs for physical protection, food, universal state-paid education, health care, and criminal laws appropriate for the age and development of the child, equal protection of the child'scivil rights, and freedom fromdiscrimination on the basis of the child'srace,gender,sexual orientation,gender identity,national origin,religion,disability,color,ethnicity, or other characteristics.
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 fromabuse, though what constitutes "abuse" is a matter of debate. Other definitions include the rights to care and nurturing.[3] There are no definitions of other terms used to describe young people such as "adolescents", "teenagers", or "youth" ininternational law,[4] but the children's rights movement is considered distinct from theyouth rights movement. The field of children's rights spans the fields oflaw,politics,religion, andmorality.
Justifications
A boy working as a "clock boy" on the streets ofMerida, Mexico
[There] is a mass of human rights law, both treaty and 'soft law', both general and child-specific, which recognises the distinct status and particular requirements of children. [Children], owing to their particular vulnerability and their significance as the future generation, are entitled to special treatment generally, and, in situations of danger, to priority in the receipt of assistance and protection.
Asminors 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, includingparents,social workers,teachers,youth workers, and others, are vested with that authority, depending on the circumstances.[5] Some believe that this state of affairs gives children insufficient control over their own lives and causes them to be vulnerable.[6]Louis Althusser has gone so far as to describe this legal machinery, as it applies to children, as "repressive state apparatuses".[7]
Structures such as government policy have been held by some commentators to mask the ways adults abuse and exploit children, resulting inchild poverty, lack ofeducational opportunities, andchild labour. On this view, children are to be regarded as aminority group towards whom society needs to reconsider the way it behaves.[8]
Researchers have identified children as needing to be recognized asparticipants in society whose rights and responsibilities need to be recognized atall ages.[9]
Historic definitions of children's rights
Pharaoh's daughter having pity on baby Moses in the floating basket. (The Hebrew babies had been ordered killed by her father.)
Sir William Blackstone (1765-9) recognized three parental duties to the child: maintenance, protection, and education.[10] In modern language, the child has a right to receive these from the parent.
TheLeague of Nations adopted theGeneva Declaration of the Rights of the Child (1924), which enunciated the child's right to receive the requirements for normal development, the right of the hungry child to be fed, the right of the sick child to receive health care, the right of the backward child to be reclaimed, the right of orphans to shelter, and the right to protection from exploitation.[11]
The United NationsUniversal Declaration of Human Rights (1948) in Article 25(2) recognized the need of motherhood and childhood to "special protection and assistance" and the right of all children to "social protection".[12]
TheUnited Nations General Assembly adopted theUnited NationsDeclaration of the Rights of the Child (1959), which enunciated ten principles for the protection of children's rights, including the universality of rights, the right to special protection, and the right to protection from discrimination, among other rights.[13]
Consensus on defining children's rights has become clearer in the last fifty years.[14] A 1973 publication byHillary Clinton (then an attorney) stated that children's rights were a "slogan in need of a definition".[15] 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.[16]
Four year old Palestinian girl starved to death, duringGaza Famine
Children have two types ofhuman rights underinternational human rights law. They have the same fundamental general human rights as adults, although some human rights, such as theright to marry, are dormant until they are of age, Secondly, they have special human rights that are necessary to protect them during their minority.[18] General rights operative in childhood include theright to security of the person,to freedom from inhuman, cruel, or degrading treatment, and theright to special protection during childhood.[19] Particular human rights of children include, among other rights, theright to life, theright to a name, theright to express his views in matters concerning the child, theright to freedom of thought, conscience and religion, theright to health care, theright to protection from economic andsexual exploitation, and theright to education.[2]
Children's rights are defined in numerous ways, including a wide spectrum ofcivil, political,economic, social and cultural rights. Rights tend to be of two general types: those advocating for children asautonomous 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 theright ofempowerment and as theright to protection.[16]
United Nations educational guides for children classify the rights outlined in theConvention on the Rights of the Child as the "3 Ps": Provision, Protection, and Participation.[20] They may be elaborated as follows:
Protection: Children have the right to protection fromabuse, neglect, exploitation and discrimination. This includes the right to safe places for children to play; constructive child rearing behavior, and acknowledgment of theevolving capacities of children.
Participation: Children have the right toparticipate in communities and haveprograms and services for themselves. This includes children's involvement in libraries and community programs,youth voice activities, and involving children as decision-makers.[21]
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 ofhealth, theright to work and rights at work, as well as thecultural 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.
Scholarly study generally focuses children's rights by identifying individual rights. The following rights "allow children to grow up healthy and free":[according to whom?][24]
A report by the Committee on Social Affairs, Health, and Sustainable Development of theParliamentary Assembly of the Council of Europe identified several areas the Committee was concerned about, including procedures such as "female genital mutilation, the circumcision of young boys for religious reasons, early childhood medical interventions in the case ofintersex children and the submission to or coercion of children into piercings, tattoos or plastic surgery".[25] The Assembly adopted a non-binding resolution in 2013 that calls on its 47 member-states to take numerous actions to promote the physical integrity of children.[26][non-primary source needed]
Article 19 of the Convention on the Rights of the Child enjoins parties to "take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation".[27] TheCommittee on the Rights of the Child interprets article 19 as prohibiting corporal punishment, commenting on the "obligation of all States Party to move quickly to prohibit and eliminate all corporal punishment."[28] TheUnited Nations Human Rights Committee has also interpreted Article 7 of theInternational Covenant on Civil and Political Rights prohibiting "cruel,inhuman or degrading treatment or punishment" to extend to children, including corporal punishment of children.[29][non-primary source needed]
Intersex children are children born or develop, atypicalsexual traits. Historically intersex children have been the subject of involuntary surgical assignment and laterhormone replacement therapy to a binarysex/gender, which was often concealed from patients; in the US, this system was known as theoptimum gender of rearing model, which organizations such as theISNA heavily criticized.[31][32] Intersex children often face high levels ofmental stress, andstigmatization, as well asisolation for having atypical bodies, or undergoing medical procedures.[31][33]
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.[37] Within theyouth rights movement, it is believed that the key difference betweenchildren's rights andyouth 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 assuffrage.
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 includechild neglect,child abuse,freedom of choice,corporal punishment andchild custody.[38][39] There have been theories offered that provide parents with rights-based practices that resolve the tension between "commonsense parenting" and children's rights.[40] The issue is particularly relevant in legal proceedings that affect the potentialemancipation of minors, and in cases where children sue their parents.[41]
Parents do not have absolute power over their children. Parents are subject to criminal laws against abandonment, abuse, and neglect of children. International human rights law provides that manifestation of one's religion may be limited in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.[19][43][non-primary source needed]
Courts have placed other limits on parental powers and acts. TheSupreme Court of the United States, in the case ofPrince v. Massachusetts, ruled that a parent's religion does not permit a child to be placed at risk.[44] TheLords of Appeal in Ordinary ruled, in the case ofGillick v West Norfolk and Wisbech Area Health Authority and another, that parents' rights diminish with the increasing age and competency of the child, but do not vanish completely until the child reaches majority. Parents' rights are connected to the parent's duties to the child. In the absence of duty, no parents' rights exists.[45][46]TheSupreme Court of Canada ruled, in the case ofE (Mrs) v Eve, that parents may not grant surrogate consent for non-therapeutic sterilization.[47] The Supreme Court of Canada has ruled, in the case ofB. (R.) v. Children's Aid Society of Metropolitan Toronto:[48]
While children undeniably benefit from the Charter, most notably in its protection of their rights to life and to the security of their person, they are unable to assert these rights, and our society accordingly presumes that parents will exercise their freedom of choice in a manner that does not offend the rights of their children.
The 1796 publication ofThomas Spence'sRights 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 andpublic education. The 1927 publication ofThe Child's Right to Respect byJanusz Korczak strengthened the literature surrounding the field, and today dozens of international organizations are working around the world to promote children's rights. In the UK the formation of a community of educationalists, teachers, youth justice workers, politicians and cultural contributors called the New Ideals in Education Conferences[49] (1914–37) stood for the value of 'liberating the child' and helped to define the 'good' primary school in England until the 80s.[50] Their conferences inspired the UNESCO organisation, the New Education Fellowship.
A.S. Neill's 1915 bookA Dominie's Log (1915), a diary of a headteacher changing his school to one based on the liberation and happiness of the child, can be seen as a cultural product that celebrates the heroes of this movement.[citation needed]
Opposition
The opposition to children's rights long predates any current trend in society, with recorded statements against the rights of children dating to the 13th century and earlier.[51] Opponents to children's rights believe that young people need to be protected from theadultcentric world, including the decisions and responsibilities of that world.[52] In a dominantly adult society, childhood is idealized as a time of innocence, a time free of responsibility and conflict, and a time dominated by play.[53] The majority of opposition stems from concerns related tonational sovereignty,states' rights, the parent-child relationship.[54] Financial constraints and the "undercurrent of traditional values in opposition to children's rights" are cited, as well.[55] The concept of children's rights has received little attention in the United States.[56]
TheUniversal 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 theDeclaration of the Rights of the Child,[11] drafted byEglantyne Jebb in 1923, endorsed by theLeague of Nations in 1924 and reaffirmed in 1934. A slightly expanded version was adopted by theUnited Nations in 1946, followed by a much expanded version adopted by the General Assembly in 1959. It later served as the basis for theConvention on the Rights of the Child.
International Covenant on Civil and Political Rights
The United Nations adopted theInternational Covenant on Civil and Political Rights (ICCPR) in 1966. The ICCPR is a multilateral international covenant that has been ratified or acceded to by nearly all nations on Earth. Nations which have become state-parties to the Covenant are required to honor and enforce the rights enunciated by the Covenant. The treaty came into effect on 23 March 1976. The rights codified by the ICCPR are universal, so they apply to everyone without exception and this includes children. Although children have all rights, some rights such as the right to marry and the right to vote come into effect only after the child reaches maturity.[19]
Some general rights applicable to children include:
the right to life
the right to security of person
the right to freedom from torture
the right to freedom from cruel, inhuman or degrading treatment or punishment
the right to be separated from adults when charged with a crime, the right to speedy adjudication, and the right to be accorded treatment appropriate to their age[19]
Article 24 codifies the right of the child to special protection due to his minority, the right to a name, and the right to a nationality.[19]
TheUnited Nations' 1989Convention 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 theCommittee on the Rights of the Child. National governments thatratify it commit themselves to protecting and ensuring children's rights, and agree to hold themselves accountable for this commitment before the international community.[57] The CRC is the most widely ratified human rights treaty with 196 ratifications; theUnited States is the only country not to have ratified it.[58]
The CRC is based on four core principles: 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 that affect them, according to their age and maturity.[59] The CRC, along with international criminal accountability mechanisms such as theInternational Criminal Court, theYugoslavia andRwanda Tribunals, and theSpecial Court for Sierra Leone, is said to have significantly increased the profile of children's rights worldwide.[60]
Vienna Declaration and Programme of Action
TheVienna 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 mortality 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 fromnatural disasters andarmed 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 femaleinfanticide, harmfulchild labour,sale of children and organs,child prostitution,child pornography, and other forms of sexual abuse.[61] This influenced the adoptions ofOptional Protocol on the Involvement of Children in Armed Conflict andOptional Protocol on the Sale of Children, Child Prostitution and Child Pornography.
Enforcement
A variety of enforcement organizations and mechanisms exist to ensure children's rights. They include the Child Rights Caucus for theUnited 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. TheUnited 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 internationalnon-governmental organizations originally formed in 1983 to facilitate the implementation of the United Nations Convention on the Rights of the Child.
National law
Many countries around the world have children's rightsombudspeople 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.
The United States has signed but not ratified the CRC. As a result, children's rights have not been systematically implemented in the U.S.
Children are generally afforded the basic rights embodied by the Constitution, as enshrined by theFourteenth Amendment to the United States Constitution. TheEqual Protection Clause of that amendment is to apply to children, born within a marriage or not, but excludes children not yet born.[62] This was reinforced by the landmarkUS Supreme Court decision ofIn re Gault (1967). 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.[63]
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 insame-sex marriages andparticular rights for youth.
German law
A report filed by the President of theINGO Conference of the Council of Europe, Annelise Oeschger finds that children and their parents are subject toUnited Nations,European Union andUNICEFhuman 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 includingtorture, 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 (JA) officers are protected against prosecution. 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 parents' rights violations.[66]
^abConvention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2 1990.
^Bandman, B. (1999)Children's Right to Freedom, Care, and Enlightenment. Routledge. p 67.
^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.
^Young-Bruehl, Elisabeth (2012).Childism: Confronting Prejudice Against Children. New Haven, Connecticut: Yale University Press. p. 10.ISBN978-0-300-17311-6.
^(1997) "Children's rights in the Canadian context",Interchange. 8(1–2). Springer.
^Freeman, M. (2000) "The Future of Children's Rights,"Children & Society. 14(4) p 277-93.
^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.
^Committee on Social Affairs, Health and Sustainable Development.Children's Right to Physical Integrity, Doc. 13297. Parliamentary Assembly of the Council of Europe, 6 September 2013.
^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. 2ERICED428855.
^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.
^Newman, Michael (2015) Children's Rights in our Schools – the movement to liberate the child, an introduction to the New Ideals in Education Conferences 1914-1937,www.academia.edu
^Starr, RH (1975)Children's Rights: Countering the Opposition. Paper presented at the 83rd Annual Meeting of theAmerican Psychological Association in Chicago, Illinois, Aug. 30-Sept. 3, 1975.ERICED121416.
^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).
^Arts, K, Popvoski, V,et al. (2006)International Criminal Accountability and the Rights of Children. "From Peace to Justice Series". London: Cambridge University Press.ISBN978-90-6704-227-7.
^League for Children's RightsArchived 2021-10-03 at theWayback Machine 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.
