Children as right bearers: or are they?

A few months ago in Melbourne, a father threw his baby daughter off the Westgate Bridge into the water and the terrible incident was witnessed by her siblings. The story sent shivers up my spine and thousand others who heard what happened to the child. The story made front-page news in the print and other media for a day or two and was soon lost in the din of other happenings.

Did it go off our radar because there were other important things in our lives to worry about or did it fade away from our memory because we thought we were lucky to have our happy and loving family?

Let’s have a look at history. Rousseau in 1762 remarked, “Childhood is unknown. Starting from the false idea one has of it, the farther one goes, the more one loses one’s way”. Historically and traditionally, children were viewed as the chattels of their parents. The Roman doctrine “patria potestas”, which literally means ‘parental power’, enabled the father to have full control of his child as much as he had control on his other chattels, such as slaves, animals and women. It was argued that liberty principle applied ‘only to human beings in the maturity of their faculties’ (John Stuart Mill (1859) On Liberty, Cambridge University Press, 1989). Moreover, if ‘the natural jurisdiction’ of a father over his child is really set aside, the whole course and order of nature would disturb the very foundation of family life’ (Bowen LJ in Agar –v- Ellis (1883) 24 ChD 317 at 329).

The shift in societal thinking started to emerge in later years of the last century, where children’s rights became the dominant issue for governments, various administrations, community organisations and policy-makers. There is a growing recognition now that parents’ rights over their children are not inviolable and State has the right to intervene, where it is necessary, to protect the children’s interests. The United Nations Convention on the Rights of the Child (CRC) is a major development in the children’s rights movement.

The Convention articulates children’s rights and provides a set of guiding principles for State parties on how such rights should be applied and interpreted in their respective jurisdictions. Various scholars, especially in the United States of America, argue that granting rights to children and placing them at par with adults (parents) creates conflicts and upsets the family structure. Hillary Rodham (later  Hillary Clinton) in 1973 (Harvard Educational Review, 43, p. 487) stated that the phrase children’s rights lacks precision and is ‘a slogan in search of definition’. Scholars like Guggenheim argue that children rights movements are misguided and confrontational as they are premised on the assumption that children are oppressed and need ‘liberation from the adult world’. He argues that the calls for ‘rights’ ‘liberation’, and ‘autonomy’ separate parents from children and facilitates State intervention in the family life and he described this as the “camel’s nose in the tent”. In his view, the children’s rights discourse is excessively legalised and problematic due to the incoherency in what constitutes a ‘child’s right’. He argued that ‘children’s rights movements need an original vocabulary and cannot afford to echo the language of other movements (i.e. women and human rights movements) seeking to advance the freedom from ‘others’. 

Though the inseparability of children and parents rights may cause tensions between varying interests, the children rights discourse is capable of balancing those interests.  The provisions of CRC create a partnership between parents and State, keeping children the centerpiece of protection. The powerful language and vision in the children’s rights discourse can elevate the status of children from passive recipients of benevolence and charity to active participants. The Convention on the Rights of the Child, in the words of Robert Reid, is ‘a vehicle for creating world conscience that speaks on behalf of the child.’  Why don’t we talk openly about children’s rights? Why don’t we force authorities to take action against those who abuse children’s rights?

Children need special attention as they have inherent and structural vulnerability. Their inherent vulnerability arises from the fact that they are physically weak, immature, lack knowledge and experience, thus rendering them dependent on adults. Their lack of political and economic power and lack of civil rights puts them in structural vulnerability.

The guiding principles of CRC: non-discrimination, best interest and participation should be followed everywhere (inside the family or out in public arena) where a child’s life is debated and discussed and decisions are made for the child’s future.