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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
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
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.
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