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A Critical Look at Children's Rights

by Robert Lyons and Simon Knight 2 May 1997


The issues and concepts associated with children's rights are everywhere today. The UN Declaration on the Rights of the Child and the Children Act 1990 represented a major shift in attitudes towards children which has now been mirrored in Scotland with the introduction of new legislation.

The Children (Scotland) Act 1995 is couched in terms that make the interests of the child central to all considerations. The 'overarching principles' at the heart of the Act make the child's welfare the paramount consideration of the courts and ensure that a child's opinion must be heard and taken into account if at all possible. This brings legislation into line with the buzz phrase that child care professionals have been using for some time when they describe themselves as 'child-centred'.

Somehow the idea that parental concern for offspring is sufficient has been brought into question. Once mums and dads were the accepted source of advocacy for children. Now there is a perceived gap or deficiency that requires Childline, the law and trained professionals to step in. There is a process going on whereby the 'empowerment' of children is causing boundaries between public and private domains to be eroded. This is resulting in a shift in power from the family to the state.

These developments need to be explored to find out if they are as progressive as they seem. We will examine the unquestioned wisdom that children should have rights and then explore whether there really is a conflict of interests between parents and their children. Finally, we go on to examine whether this legislation really will benefit children or achieve the aims set out for it.

Children's rights? Wrong!

Children are children, apprentice adults, who are engaged in a process of acquiring knowledge and experience of life. Because they are inexperienced they are vulnerable to all sorts of pressures and influences and consequently need to be protected. From the Factory Acts of the 19th Century onwards the assumption has been that children are not competent to make decisions about themselves and need guidance, care and control.

When discussing children's rights, Beatrix Campbell cites the UN Declaration as "..describing rights as entitlements: children's needs are their rights" (Community Care, January 1995). This effectively redefines the meaning of the term 'rights' away from the traditional understanding, as freedom from the state, to one of 'care and protection' by the state.

Moving to a new understanding of 'rights' rooted in a child centred view of the world creates a problem for adults. Campbell is wrong to relativise children's powerlessness and dependency as "... the case against them". Women, blacks and other oppressed minorities fought for equal rights on the basis that they were denied equal treatment under the law. The law treated them as inferior when in fact there was no basis or justification for this inequality. It is not the law that prevents children from participating in society on an equal footing but the reality of their existence. Children literally are incompetents.

When rights come to mean protection of incompetents rather than freedom from artificial constraint then we all suffer. It degrades what it means to be an adult and inflates what is expected of children.

Where the Act demands that a child's view be heard, it makes the assumption that children as young as twelve can form an opinion. This may be the case but a child's opinion is hardly an informed one. Tom Sawyer was very 'opinionated' on the subjects of going to school and washing behind his ears, but nevertheless, adults insisted. Adults know better but their experience and knowledge is being trivialised by conferring legal competence on children.

Nowadays children are continually placed in situations where their judgement is exaggerated and they are asked to make decisions they are incapable of e.g. choosing between their parents. The pressure placed upon the child in this situation can be extremely stressful. More seriously though, there are some decisions children should not be involved in. Giving weight to their wishes in such cases could result in the wrong decision being made. This benefits no-one.

The pathological family

The issue of children being placed in situations, where they have to make difficult or impossible decisions that they are not equipped to cope with, leads us onto our next concern with recent changes to child law.

There is a pervasive concern about the family today. The perception of a destabilised family unit, that is held to be the root cause of much of society's instability, is common currency. This opinion is so accepted in fact that when it comes to solving these problems, the family is no longer deemed able to cope on its own. There are now literally hundreds of books about parenting, offering advice and skills that are essential for the successful rearing of children of any age. One wonders how on earth we managed in the past.

With the child as the central concern, a division of interests between child and parents becomes implicit or explicit in some cases: "The Children Act was nothing if not a response to the crisis created by the new consciousness of childhood oppression, particularly by parents" (B. Campbell, Community Care, op sit.). This has changed the relationship between the Welfare State and the rest of society. Where once it was a safety net, offering help with the necessities of life to needy families, it is now much more interventionist, advocating on behalf of children, often in opposition to their parents and against the wishes of both.

It might surprise some people, but it is still the case that the vast majority of children grown up well adjusted, and to top it all within their own family. Ask any parent if they want their child to grow up well adjusted and go on to become successful. There are no prizes for guessing the answer. Parents want the best for their children, that is why they discipline them, make them keep their bedrooms tidy and send them to bed early on school nights.

In fact you could go further and say that the interests of children and their parents coincide.

Jim Harding, director of the NSPCC, may be correct when commenting on a recent survey, that "... even in the 1990s, some fathers appear to be remote figures" (Guardian 10th April 1997).
May I suggest however, that working long hours is necessary to support a family in the 1990s. As many as 78 per cent of children wanted fathers to spend more time with them. In order to facilitate this, I'm sure 100 per cent of both children and fathers would vote for a decent family wage.

Looking at the situation from another perspective: women have campaigned to be freed of child care commitments for years. Being freed of child care was seen as necessary and desirable. Today, however, men are encouraged not to be just Saturday Dads. A role reversal here is hardly progressive. But now, to be good parents, both parents are supposed to plan their lives around their children. This may directly impinge upon the ability of parents' freedom to decide the best arrangements for their own lives and the lives of their children. For example, children are now to have the right to parental contact with both parents. Will this provide the best future for those children or will it merely drag a resentful partner back into a relationship they do not wish to have?

The sentiments behind the discussion of children's rights as well as the motives of many professionals, may be laudable. But in order to gain insight into the implications we must look behind the emotion. The family may not be perfect but neither is it a pathological institution. Legislation that assumes a conflict of interests between parents and children, and then places the interests of children before those of their parents needs to be held up for examination. We might find that despite the rhetoric, empowering children may benefit no-one, including those it sets out to help.

Converging agenda

In fact, a concern for children is by no means the sole reason for the creation of legislation like the Children (Scotland) Act. In fact, it can be seen that the Act is the product of the convergence of two different agenda over the last ten years or so.

On the one hand, the traditional conservative family lobby has been attempting to shore up a favoured institution. The family is perceived as a moderating influence in society, encouraging people to put the interests of their immediate relations over those of wider society. However, the reality is that society is taking a more relativist and pragmatic view towards family life. If the family cannot continue to exist as a relatively self-regulating institution, the state must intervene more directly to ensure its continued existence. The rules in relation to parental responsibilities and the Child Support Act fit into this framework.

On the other hand, there is a body of thought which is supportive of this new relativist outlook but which is also very concerned with the welfare of children and the greater perceived risk of abuse. These notions have been expressed more and more fiercely with the logical conclusion being the need for greater state intervention in the family to provide safeguards for children. This has led to the creation of the child-centred rules and regulations mentioned earlier and which are central to the legislation north and south of the border.

The new language of children's rights has been ideal in creating a framework which suits the changing society in which we live but which meets to some extent the ideals of the traditional family lobby. The irony is that, we would argue, the outcome is unlikely to suit anyone. As state regulation of the family increases, so the family as a self-regulating unit is undermined even more. Many of the advantages of the family disappear. Problems that were previously dealt with in a private way are becoming more public as individual family members take advantage of the opportunities for dispute resolution offered by private and public law.

Meanwhile, children are pushed into situations where they are forced to choose between family members or even withdrawn from families altogether. While the notion of rights seems on the surface to empower them, in reality it does no such thing. It merely empowers other adults to take action in their name. Whether as carers or as legal representatives, parents will invariably be better protectors of children's interests than social services or the courts. That is not a dewy-eyed advertisement for family life but a sober assessment of the real nature of what the state offers - remedial intervention - and what the vast majority of families offer - love.

The new children's legislation has been received in general with approval but we believe it does no favours to adults or children and does not even succeed in achieving its political ends. Already, the new Labour government has put further legislation for the control and education of children at the top of its agenda. We suggest that the family will remain the subject of increasing interference for some considerable time to come.

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