In 1989 the United Nations General Assembly adopted, without a vote, a new Convention on the Rights of the Child (CRC). Within a year, 130 nations had accepted the CRC, and some 175 now have. The United States has not yet ratified it, but is now considering doing so.
As approvals of international human rights treaties go, this is such blinding speed that the CRC’s widespread acceptance seems surprisingly uncritical-especially for a Declaration that includes an unprecedented approach to the autonomy of children. Although it restates many time-honored UN themes about children, the new CRC would also arguably alter a number of American laws affecting families and children.
That the U.S. is not yet among the adopting nations is a curious fact, since Americans took the lead in developing the CRC’s unique provisions for child autonomy. American sluggishness might be explained by a traditional reluctance to adopt human rights treaties. Moreover, family law is typically reserved to the states, which complicates the process of federal Senate ratification. A more speculative possibility arises from the fact that the American legal mainstream never embraced the notion of legal autonomy for children. Some CRC advocates have nonetheless incorrectly implied that their positions reflect the current state of American law-which is unfortunate for those in the international community who relied on their claims. This raises the question whether proponents of child autonomy who have been unsuccessful in U.S. legal circles have turned to the CRC as a way of leveraging American legislatures and courts toward what can now be presented as an international vision of autonomy for children.
Whatever the reasons for the delay, the Clinton Administration announced last February that it had signed the CRC and was sending it to the Senate for ratification.
The 1989 Convention was not the first time an international organization has expressed aspirations for the world’s children. The League of Nations in 1924 adopted the general principle that “mankind owes to the child the best it has to give.” The United Nations adopted an impressive “Declaration on the Rights of the Child” in 1959. All three declarations laudably urge the protection and development of children and seek to improve children’s health, nutrition, safety, and education.
However, the 1989 statement also charts what the UN calls “new territory” by moving beyond protection rights to choice rights for children. According to a current UN publications catalogue, the CRC offers a “new concept of separate rights for children with the Government accepting the responsibility of protecting the child from the power of parents.” One proponent, Michael Jupp, says “the Convention recognizes that children should have rights identical to adults’.” Thus the CRC takes a “quantum leap” beyond the 1959 Declaration by adopting and promoting “an autonomous view” of children’s rights that is “more based on choice than needs” of children.
American society has long been committed to protecting and developing its children, as the existence of the nation’s public schools and juvenile courts demonstrates. The concept of minority legal status has also protected children from their own temporary lack of capacity. Rather than discriminating against children, this tradition gives them advantages designed to protect them from abuse and nurture them toward maturity.
Not until the early 1970s did the first Kiddie Libbers appear, arguing for the first time that children “are autonomous individuals, entitled to the same rights as adults.” This assertion relied not on new evidence that young people have adult-like capacity, but on the liberationist ideology that kids are people too. This ideology drew support from Supreme Court opinions in the 1960s that recognized rudimentary constitutional rights for public school students and other children.
But child autonomy claims have not really carried the day in American law. Supreme Court Justice Lewis Powell captured the collective judgment of American courts and legislatures in 1979 when he wrote that “the peculiar vulnerability of children, their inability to make critical decisions in an informed, mature manner, and the importance of the parental role in child rearing” together justify “the conclusion that the constitutional rights of children cannot be equated with those of adults.”
While American law has not yet accepted the concept of legal autonomy for children, the idea that children should have more freedom has been growing in recent years, perhaps reflecting a lessening of adult responsibility for children. The UN’s CRC illustrates that the movement toward increased social, even if not fully legal, autonomy for children is growing, not only in the U.S. but also internationally. Since 1989, the CRC has exported throughout the world the concept of presuming the autonomy of the individual child. As described by one proponent, the CRC’s “civil rights” provisions reject the “integrative” character of the 1959 UN Declaration on Children, which had emphasized the “integration of persons into society.” Instead, the CRC “expresses an ‘autonomous’ view of the rights of children” that provides for them “a sphere of autonomy and freedom from control rather than integration into society.”
There is thus a similarity between the UN’s recent thinking about child autonomy and its 1994 Cairo Conference on Population, the “core philosophy” of which George Weigel described in First Things (“What Really Happened at Cairo,” February 1995) as a “view of the human condition . . . rooted in [the] concept of the radically autonomous individual”-a concept that obscures “the importance of families rooted in stable marriages for the well-being of children.”
The significance of the CRC’s emphasis on child autonomy is best understood by considering the distinction between rights of protection and rights of choice for children. Protection rights, which do not depend on any minimum level of capacity, include such safeguards as the right to property, rights to physical care and security, and the right not to be imprisoned without procedural due process. Recently increased procedural protections for American children in juvenile courts, schools, and other settings are typically designed not to increase children’s personal choices but to protect children against the abuses of unchecked adult discretion. Children’s relative lack of adult capacity explains the need for such protections.
Choice rights, on the other hand, grant individuals the authority to make affirmative and legally binding decisions, such as voting, marrying, making contracts, exercising religious preferences, or choosing whether and how to be educated. The very concept of minority status, reflected in statutes in every American jurisdiction, denies underage children independent choices on such matters-not as a way of discriminating against them, but as one way of protecting children and society from the consequences of a child’s immature choices and from exploitation by those who would take advantage of a child’s vulnerability. To confer the full range of choice rights on a child is also to confer the burdens and responsibilities of adult legal status, which necessarily removes the protection rights of childhood. With the exception of abortion choices by minors found to be “mature,” virtually all of the modern American children’s rights cases have been concerned not with children’s rights of autonomous personal choice, but with their rights to protection.
This is the background for understanding the 1989 CRC’s provisions that grant children greater autonomy by extending their rights of choice-or, as CRC advocate Cynthia Price Cohen puts it, their “rights of individual personality.” To be sure, these newly fashioned rights comprise but a fraction of the complete CRC, which also reflects in its fifty-four separate articles a significant degree of agreement with the conceptual and political development that has occurred throughout the field of international human rights in recent years. In addition to reaffirming such fundamental children’s needs as food, clothing, and shelter, the CRC properly addresses issues of drug abuse, child neglect, a healthy environment, children in armed conflict, and the special needs of disabled children.
The CRC also clearly “acknowledges the primary role of the family and parents in the care and protection of children, and the obligation of the State to help them in carrying out these duties.” Indeed, the CRC’s Preamble describes the family “as the fundamental group of society and the natural environment for [children’s] growth and well-being.” To this end, Article Five affirms “the responsibilities, rights, and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom.” Article Five, however, subtly but significantly limits parental rights to those that are “consistent with the evolving capacities of the child.” Parental rights are thus limited to direction “of the [children’s] rights recognized in the Convention.”
But the CRC also includes some novel provisions. One of these is an arguably new standard for state intervention in intact families. Among the fundamental axioms of American law is the doctrine that the parent-child relationship antedates the state just as natural individual rights antedate the state in the Constitution’s political theory. Parents are not trustees who receive authority to rear their children through delegations of state power over children. Rather, as the Supreme Court held in distinguishing biological parents from foster parents, the natural parent-child tie is “a relationship having origins entirely apart from the power of the State,” while a foster placement arranged by state agents “has its source in state law and contractual arrangements.” Because of this principle, the Court has said, “the child is not the mere creature of the State,” and the social structure-partly in order to limit state power-presupposes a system of family units, not just a mass of isolated individuals who all stand in the same relationship to the state.
Agents of the state in America have thus never had authority to intervene in the child-parent relationship until they establish jurisdiction through formal proceedings: divorce-related custody issues; adoptions; findings of serious parental unfitness, neglect, abuse, or abandonment; or child misbehavior severe enough to require state intervention. Article Nine of the CRC, however, provides that children may be separated from parents when “such separation is necessary for the best interests of the child.” Articles Three and Eighteen add that while “parents have the primary responsibility for the upbringing and development of the child,” the “best interests of the child will be [parents’] basic concern.”
Does this mean that any parental care that falls short of serving the child’s “best interests” is sufficiently flawed to trigger intervention? Could a child trigger state intervention merely by requesting state review of the “reasonableness” of parental conduct compared to the child’s view of his or her best interests?
Some American proponents of the CRC argue that its “best interest” language applies only in a secondary way to child placement; that is, only when custody is already in issue or neglect has been established does a judge unavoidably face placement options. Others, however, see the CRC’s best interests standard as a primary jurisdictional test. Two Australian lawyers, Margaret Otlowski and Martin Tsamenyi, believe that under the CRC parental rights are “subject to external scrutiny” and “may be overridden” when “the parents are not acting in the best interests of the child , or where the parents are unreasonably attempting to impose their views upon mature minors who have the capacity to make their own decisions.”
This interpretation 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. To the extent that the CRC allows such interpretations, its ambiguity risks creating a new threshold for state intervention in intact families.
So too, risks inhere in the possible preference of the CRC for subjective determinations of a child’s capacity. Current American law uses an objective measure-the child’s age-as a surrogate for actual determinations of mature capacity. Age limits serve as the gateway to a wide variety of activities, including rights to vote, consent to medical treatment, drive motor vehicles, marry, consume alcohol, use tobacco, and purchase pornographic material. Justice John Paul Stevens once observed that such legislation uses “chronological age” to “protect minors from the consequences of decisions they are not yet prepared to make,” even though “it is perfectly obvious that such a yardstick is imprecise and perhaps even unjust in particular cases.”
Some courts in recent years have experimented modestly with legal doctrines designed to reduce the power of legislative classifications and to increase reviews of individual merits. Individualized determinations do appear to offer greater fairness, but that promise can be more than offset by the inherent lack of reasoned generality-and, hence, the lack of neutrality-in subjective decisions. Thus, despite some increased judicial openness to individual variations, objective categories like marriage and minority status remain fixed in American jurisprudence.
America’s most ardent advocates of child autonomy have still argued that children should be presumed capable of legally binding action until an individualized determination shows otherwise. The experience of American courts, however, reveals that in practice customized findings of maturity are not very workable. Some states, for example, allow “mature minor” women to make abortion decisions, if a judge finds them sufficiently mature. Absent a finding of maturity, the judge must determine whether the abortion is in the pregnant minor’s best interest. A field study of 1,300 minors who applied for abortions under such rules in Massachusetts found that, eventually, all 1,300 received abortions. This evidently resulted from the unwillingness of judges to substitute their judgment for the actual preference of an expectant teenager, regardless of her age or psychological maturity.
Rejecting age-based classifications also undermines the parental role, because it shifts to some presumably “objective” person, like a judge, the task of determining maturity-which is, in effect, the parent-like task of supervising a child’s choices. Unless the parents of such a child are demonstrably unfit, long established American juvenile law principles would prohibit shifting the basic parental role to other persons. Moreover, because judges hardly know the children whose maturity they must judge, or because “maturity” as a concept is hopelessly complex and subjective, or because so many choices (as with abortion) involve hotly debated social issues, judicial supervision can abandon children to their immaturity.
Nonetheless, the CRC would grant some children’s choice rights according to “the evolving capacities” of the individual child. The general rule favoring parental rights in Article Five limits parental prerogatives to “a manner consistent with the evolving capacities of the child.” Similarly, Article Twelve assures children the right to express their views and asks that those views be “given due weight in accordance with the age and maturity of the child.” Article Fourteen respects parents’ rights in the sensitive area of directing the religious upbringing of their children, but again only “in a manner consistent with the evolving capacities of the child.” Paradoxically, the CRC takes this position on many choice rights despite its preference for age-based classifications in dealing with children’s violations of penal laws.
A developmental approach to children’s activity is vital to the process of teaching them both maturity and responsibility. But it is unclear from the CRC’s language whether it simply invites decisionmakers to consider the feelings and desires of children in legally unenforceable ways or whether it advocates the formal removal of age-based classification. That very lack of clarity risks misunderstanding by readers who have little knowledge of the legal and psychological context of the CRC’s language.
For instance, one CRC supporter, James Gabarino, believes “the American legal system has come to regard children as neither automatically competent nor incompetent.” But whatever the meaning of psychological competence, “legal competence” is a well-established concept in American law for children as well as for the elderly and the mentally disabled. That concept determines children’s legal competence on the basis of age. The CRC’s developmental language reflects perfectly desirable psychological aspirations that do not (and, like hopeful but unenforceable expressions of a child’s “right” to be loved, cannot) mirror legal reality.
The CRC’s model of child autonomy finds its clearest expression in its “civil rights” provisions. Although these are the articles that most clearly depart from current American law, CRC advocate Robert Shepherd says they demonstrate “a more American view of rights than traditionally have been found in other international documents,” focusing on “the concept of ‘individual rights’ as developed in U.S. constitutional law.”
For example, Article Thirteen grants children “the right to freedom of expression, including the right to seek, receive, and impart information and ideas of all kinds, regardless of frontiers . . . through any medium of the child’s choice.” The CRC’s proponents point out that this broad free speech grant reflects the breadth of Supreme Court rulings about student rights in the 1960s. What they fail to add is that a year before the UN adopted the 1989 Convention, the Supreme Court substantially limited its earlier rulings, broadly upholding a public school’s right to control not only the curriculum, but also the extracurriculum, including the content of student newspapers and speeches in school assemblies. If Article Thirteen were taken literally in American schools, teachers and administrators could have difficulty managing core education content, let alone the larger school environment.
Articles Twenty-Eight and Twenty-Nine do urge participating countries to provide “compulsory” education that will develop “the child’s personality, talents, and mental and physical abilities to their fullest potential.” Educational development of this kind nurtures true freedom of expression and, finally, actual autonomous capacity. But this “compulsory” model of education appears to contradict the free spirit of the other civil rights articles, requiring the reader to reconcile the competing values. The CRC might have itself attempted such reconciliation-which would have forced the drafters to work through their own philosophical ambivalence.
Article Thirteen’s language about receiving “information and ideas of all kinds, regardless of frontiers” through “the medium of the child’s choice” also fails, except in a vague reference to “public health or morals,” to recognize the risks to children of obscenity and pornography. The Supreme Court has denounced the destructive nature of child pornography and it has upheld state laws restricting the sale of pornographic material to minors under age sixteen. The CRC does ask in Article Seventeen for media guidelines that protect children from “injurious” material and it opposes sexual abuse in Article Nineteen. But the language of Article Thirteen is written with such an unrestrained spirit that its relationship to these other articles is not clear.
Article Fifteen ensures children the right of association and peaceful assembly, subject to a few soft limits. The Supreme Court has rejected claims to associational rights in minors’ curfew cases, but CRC proponents argue that this Article just extends to groups those rights of expression it grants to individual children.
Article Fourteen affirms “the right of the child to freedom of thought, conscience, and religion.” It respects parents’ “rights and duties” to “provide direction” in this realm, but only “to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.” In this instance, as arguably in general under Article Five, the parental rights recognized by the CRC apparently extend only to a role in enforcing the rights the CRC grants to the child, without recognizing an independent parental right. The CRC’s autonomy model tends to view 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.
Article Fourteen also seems to reject the Supreme Court’s general position that parental interests are prior to, not derived from, the state. More precisely, Article Fourteen apparently rejects the Court’s longstanding position that parents have a constitutional right to rear their children within the parents’ religious tradition. In Yoder v. Wisconsin , the Court affirmed an earlier case that upheld parents’ rights to send their children to parochial schools as “a charter of the rights of parents to direct the religious upbringing of their children.” But Article Fourteen prefers Justice Douglas’ dissent in the Yoder case, which argued that “it is the student’s judgment, not his parents’, that is essential if [students are] to be masters of their own destiny.” The Yoder majority directly rejected Douglas’ autonomy-based position, but Douglas’ view remains widely quoted by advocates of child autonomy.
Indeed, CRC proponents describe Douglas’ position as “laying the groundwork for the CRC’s explicit recognition that children’s civil rights must be considered in light of [their] moral and cognitive [development].” The CRC’s emphasis on “the evolving capacities of the child” in the religious context is striking, not only because it casts doubt on age-based classification, but because it does so in a context-religious liberty-in which American law has recognized parental prerogatives for a longer time and in a more fully articulated form than virtually any other parental interest.
Article Sixteen establishes child privacy rights: “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence.” This limited context confers little meaning on “privacy,” an unfortunate omission in light of the growing complexity of privacy laws. Robert Shepherd believes this Article grants children the same “right to privacy” from which “the constitutional protections for procreation and abortion decisionmaking have come.” He thinks this article confers “the right to be let alone,” Justice Brandeis’ 1934 phrase that now captures the general idea of autonomous personhood.
This broad sense of privacy makes no explicit allowance for the role of parents, who are unavoidably involved in a child’s private world. In most contexts one could assume that a “right” to privacy runs only against the state. However, the CRC’s apparent intent to give “government the responsibility of protecting the child from the power of parents” naturally raises the question whether the CRC’s interest in privacy rights for children also intends to limit parental prerogatives.
The Supreme Court has recognized privacy rights for children in only two contexts, abortion and contraception. The Court has recognized that mature minors may choose abortions without parental consent, and that immature minors, as a judge may determine, are entitled to judicial reviews that may authorize abortions. But the Court’s rationale for minors’ abortion “privacy” arose from a pregnant girl’s prospective parenthood and has no serious application to her other “choice” rights. Similarly, the Court’s approach in protecting adolescent access to contraceptives derived not from a maturity-based choice right, but from the Court’s desire to protect immature adolescents against the risks of pregnancy and venereal disease. Elsewhere the Court has upheld well-established public policy interests in preventing teenage pregnancy.
Still, for some advocates of adolescent choice, locating any children’s right within the modern concept of privacy implies, even if the cases do not, that children may now make autonomous choices in any realm that is, well, private-which implies sexual freedom. Ironically, however, constitutional privacy in American law actually developed primarily to protect personal decisions regarding marriage and kinship, not as a means of furthering the sexual revolution outside marriage, whether for adults or for children. The Supreme Court has not yet extended constitutional “sexual rights” (as distinguished from rights to abortion or contraception) to unmarried adults, let alone to children.
Against this ambiguous background, a major risk of the CRC’s reference to privacy rights for children is the implication that it supports sexual freedom for children. This risk is magnified by the claims of various adult interest groups whose core interests require protection for sexual autonomy. For example, models of medical counseling encourage physicians to be nonjudgmental. Children who need to be immunized or fitted for braces require parental consent, but advice related to sexual experience is more protected, partly because pregnant minors require special help, but also because sex seems closer to the core idea of autonomy. Public school teachers and officials are increasingly reluctant to describe adolescent sexual choices as right or wrong, both because sex education increasingly asks adults to “get real” about teen sex, and because of the growing cultural assumption that “children are capable of choosing their own morality as long as they do not commit crimes.” Some wings of feminist thought argue that attempts to limit the sexual freedom of teenagers is but one more form of female repression. And the commercially based determination of public media organizations to eliminate censorship has led to public portrayals of adolescent lovemaking that were unthinkable a generation ago, and this despite the Supreme Court’s view that preventing the “sexual exploitation of children constitutes a government objective of surpassing importance.”
Barbara Whitehead has documented a recent change in Americans’ view of adolescent sex. Adults once saw adolescence as a time for nurturing their children toward responsible behavior, so they typically helped teenagers maintain normative standards against premarital sex. Adults felt responsible for teaching young people “the competencies and credentials of adulthood before they took on the responsibilities of parenthood.” As an extension of adult society’s own sexual revolution, however, we have recently entered a new revolutionary phase in which many assume that ever-younger adolescents are presumptively autonomous and that enlightened adults will simply provide their teenagers with access to, and protection from the hazards of, ongoing sexual experiences. Yet experience shows that this hypothesis seldom works in practice, and that the contemporary assumption that adolescents can handle sexual freedom responsibly is an illusion created as much by adult preferences as by adolescent hormones.
This interpretation is reinforced by the candid admission of a team of prominent researchers on the problem of teenage pregnancy. After describing nationally increasing rates of adolescent pregnancy, the researchers, Melvin Zelnik, John F. Kanter, and Kathleen Ford, offered their view about the possibilities for reducing the rate of teenage pregnancy: “For ourselves, we prefer to cope with the consequences of early sex as an aspect of an emancipated society, rather than pay the social costs its elimination would exact.” This view of adolescent autonomy is little more than a facade that serves adult interests at the expense of adolescent interests.
Within specific contexts, there are often understandable reasons various groups feel the need to defend their institutional positions without compromise. But the aggregate effect of such attitudes in this area is to load public policy-making with so many constraints that children’s need for protection and sound education about sex can simply be lost amid noisy and ironic claims about the importance of children’s privacy-claims that may be superficial surrogates for more fundamental claims to adult autonomy or to institutional profitability.
In general, the CRC’s autonomy model ironically undermines the process of education and nurturing that every child needs to build an autonomous self. A child is not “free” to play the piano just because no physical force keeps her from walking to the piano bench. She will achieve the freedom to make music only when she has developed the capacity to obey the laws of music. Similarly, a child writing a paper in school does not have “freedom of expression” merely by being left alone at his desk. He may be free of censorship, but freedom of expression also means freedom for expression-having the capacity for understanding and expression. To develop real autonomy, children must submit their freedom temporarily to teachers who enhance their ability for the meaningful exercise of freedom.
But some adults who want to liberate children are not as motivated by children’s interests as by their own interests-some ideological and some that merely serve adult convenience. Adults face a conflict of interest in thinking about autonomy for children. When they disengage themselves from the arduous task of rearing and teaching children in the name of increasing children’s autonomy, adults’ actual-even if not fully conscious-purpose may be to increase their own autonomy by freeing themselves from the burdens of providing meaningful care. Even worse, some pro-child autonomy claims are merely a smokescreen intended to protect the interests of adults who profit from such claims while indirectly exploiting the actual interests of children.
In addition, a growing clamor over legal rights for children may create the illusion that parents, teachers, and other adults owe children only what the law demands of them. The increased appearance of autonomy for children becomes then essentially the default position that results from reducing our sense of adult responsibility for children. The assertion that untutored, unguided children already enjoy all the autonomy they need may relieve adults of demanding obligations, but that assertion is ultimately a profound form of child neglect. Children cannot raise themselves.
Another major concern with the autonomy-based approach of the CRC is its failure to distinguish between state paternalism and parental paternalism. By assuming a direct relationship between children and the state, the CRC could have the effect of reducing parental commitments to childrearing while concurrently increasing the dependency of children on the state. To the extent that governmental policies foster noncommittal attitudes on the part of parents, either because parents believe they have no right to give direction to their children or because they fear that in giving them direction they might meet state-supported resistance, both the children of those families and the larger society will suffer.
For most parents, the “rights” of parenthood leave them no alternative but an assumption of parental responsibility, because that responsibility, both by nature and by law, can be assumed by no one else until the parent has failed. But when state-enforced policies undermine traditional parental rights, those same policies will inevitably undermine the assumption of parental responsibility. To undermine parental initiative is not wise when society has found no realistic alternative to it. Indeed, it may be that children have a right to policies that require parental accountability. Yet contemporary society reveals increasing adult indifference toward the nurturing of children. The CRC’s attitude only exacerbates this tendency.
There is great irony in the observation of Akira Morita, a Japanese legal scholar who has studied the CRC’s drafting process. Professor Morita found that after a decade of leisurely discussion, the CRC’s hastily composed 1988 draft-particularly its emphasis on child autonomy-resulted from “a hurried compilation of the then current discussions as heavily impacted by the growing momentum toward the end of the Cold War. In other words, the ‘civil rights and liberties of the child’ was a child of the ideological victory of the United States over the USSR.” In his view, the impending collapse of total state paternalism in the Soviet Union helped convince the drafters that they should accept the anti-paternalistic ideology of the CRC. The drafters thus significantly confused state paternalism with family paternalism, for the Western liberal tradition has long viewed strong familial authority as a primary check on excessive state power. Nonetheless, the anti-paternalistic flavor of the times helped lead the drafters “in the final phase of deliberations in Geneva” to “defeat an attempted resistance by the representative of West Germany who tried to defend the traditional paternalistic structure of child and family law in Western society.”
It is possible, however, that the willingness of some drafters to link coercive state paternalism with a dark view of parental paternalism resulted not from confusion but from their consciously accepting an ideological critique that, as Lilian and Oscar Handlin put it, regards the nuclear family as “a microcosm of the fascist state, where the women and children are owned by, and their needs determined by, the needs of men, in a man’s world.” If so, such a vision of the nuclear family was probably not apparent when the CRC made its way to the floor of the UN General Assembly in 1989.
Whatever the drafters’ understanding of paternalism, their document resolves too many tough issues by erring on the side of children’s autonomy. This stance places the full weight of the United Nations behind the idea that parents and other adults should leave children alone, letting them speak for their own welfare and choose for themselves how their needs should be met. This approach confuses children’s needs for nutrition, education, and protection (with which the UN has historically, and wisely, been concerned) with children’s alleged right to make autonomous choices. The drafters evidently wished to use avant garde terminology that keeps the UN on the cutting edge of thinking on human rights, but they failed to see the distinction between the applications of that terminology to adults and its applications to children.
The standards and language of the CRC extend well beyond the current state of American law, despite the inference of some proponents to the contrary. We are concerned that members of the international community, especially those who look to the U.S. for leadership in the emerging field of children’s rights, may have adopted the CRC’s language without realizing that some of its key propositions and assumptions are not self-defining and are highly debatable. For example, we are told by a practicing Danish lawyer that Denmark adopted the CRC in 1991 and that the national offices that monitor child welfare and family law matters in that country now routinely defer to the CRC’s language to ensure that local practice follow UN guidelines. To the extent that others follow this pattern, we hope they do so as a result of conscious reflection on the alternatives, not simply because they believe that the latest UN word on human rights as children’s rights offers the best word.
The Clinton Administration views the CRC as a simple statement of “ideals and principles” designed “to promote the well-being and protect the basic rights of children throughout the world” in such areas as “health care and protection from violence”; thus it “will not give children the right to sue parents or supersede state laws dealing with the punishment of minors.” The Administration’s language presents the CRC as a reaffirmation of basic, even obvious, human rights, not as a conceptual or technical departure from current American law. In our view, despite its reaffirmation of many essential needs for children, and despite its admirable general invitation for the nations of the world to take children more seriously, the CRC is flawed by attitudes about autonomy that are ill-suited for children in any nation.
It is quite possible that some members of the international community have simply not understood either the CRC’s language or its conceptual novelty. For example, the Vatican’s early statement accepting the CRC explicitly assumed that the convention “represents the enactment of principles previously adopted” by the UN. Given the complexities of language translation in an area where nuanced phrasing and subtle legal distinctions are at the heart of the arguments, this is a believable interpretation. It is also possible that our concerns could be mitigated by the Administration’s providing clarifying reservations before the Senate debate begins. In any case, a Senate debate should clarify both the CRC’s intentions and its meaning, since its ideas about child autonomy originated primarily in American minds.
Clearly, in the U.S. as elsewhere, many older adolescents are quite capable of making sound lifestyle choices; far too many parents are dysfunctional; far too many children are ignored and abused; and no investment of human or political resources has greater long-range significance than investments in children. But years of serious struggling with these issues in one of the world’s cultures most friendly to autonomy has not persuaded most American courts and legislatures that-short of actual neglect-state agencies (or children themselves) are better equipped than the nation’s parents to assume parental roles. Despite increasing autonomy rhetoric, the American legal system limits children’s autonomy in the short run in order to maximize their development of actual autonomy in the long run. This approach also encourages development of the personal competence needed to produce an ongoing democratic society comprised of persons capable of autonomous and responsible action. To short-circuit this process by legally granting-rather than actually teaching-autonomy to children ignores the realities of education and child development to the point of abandoning children to a mere illusion of genuine autonomy.
Bruce C. Hafen is Professor of Law and Provost at Brigham Young University.
Jonathan O. Hafen , his son, is an associate at the Chicago law firm of Sidley & Austin.
