Twenty-five years after ratification of the U.N. Convention on the Rights of the Child (CRC), Somalia and the South Sudan are taking steps to join 193 other countries around the world that have ratified the treaty. This is important news for children, as it provides a framework for nations -- even oppressive ones -- to at least acknowledge and recognize that children have special needs and should be provided the opportunity to, as UNICEF says, "develop their full potential, free from hunger and want, neglect and abuse."
And just last week, it is noteworthy that Malala Yousafzia and Kailash Satyarthi were awarded the Nobel Peace Prize "for their struggle against the suppression of children and young people and for the right of all children to an education."
— Malala Fund (@MalalaFund) December 11, 2014
These advocates for child rights were honored on a world stage that, unfortunately, may soon find the United States of America as the only nation left in the shadows for its failure to ratify the CRC.
The Convention on the Rights of the Child, which our nation was instrumental in writing during the Reagan and George H.W. Bush administrations, was approved by the United Nations in 1989 and is now the world's most accepted human rights treaty. Moreover, the CRC is, according to human rights expert Don Cipriani, "inspiring people in countries across the world to think differently about children." He cites examples of how governments and citizens have positively changed policies to improve the lives and well-being of children in countries as diverse as Pakistan, India, Tanzania, Ireland, Japan, and Montenegro.
Despite these important examples of success and our country's own significant role in drafting the CRC, the most shocking and disappointing fact about the Convention is that, if South Sudan and Somalia are successful with ratification, the United States of America will stand alone in the world as having failed to adopt the CRC.
Highlighting the importance of the treaty to children, UNICEF says:
It reflects a new vision of the child. Children are neither the property of their parents nor are they helpless objects of charity. They are human beings and are the subject of their own rights. The Convention offers a vision of the child as an individual and as a member of a family and community, with rights and responsibilities appropriate to his or her age and stage of development. By recognizing children's rights in this way, the Convention firmly sets the focus on the whole child.
The Convention and its acceptance by so many countries has heightened recognition of the fundamental human dignity of all children and the urgency of ensuring their well-being and development. The Convention makes clear the idea that a basic quality of life should be the right of all children, rather than a privilege enjoyed by a few.
With respect to the CRC's structure, Cipriani explains that the "CRC is built around four central principles - two that are common to the human rights of all persons (nondiscrimination and the inherent right to life), and two that are more specific to children (children's best interests and respect for children's views)."
So, what is holding the United States back from protecting children? We know it's not the American public. A poll conducted by Lake Research Partners, found that, by more than a 4-to-1 margin (62-14%), Americans favor the ratification of the CRC. This is true across party lines, as a majority of Democrats, Republicans, and Independents favor ratification.
Unfortunately, misconceptions, myths, and lies remain the biggest barriers to adoption of both the CRC and the U.N. Convention on the Rights of Persons with Disabilities (CRPD) in our country. For example, despite claims about concerns related to U.S. national sovereignty, the fact is that true substantive changes are limited in the adoption of the CRC and they can be addressed, as is the case with all international treaties, in the Senate's formal ratification process. And, despite the expressed concerns about parental rights, the CRC explicitly supports the rights of parents in recognizing the family "as the fundamental group of society."
What opponents of child rights fail to understand is that lifting the human rights of a disadvantaged or vulnerable group is not like sporting events where there are typically winners and losers. Quite the contrary, throughout history, we know that ending oppression and various forms of slavery, human trafficking, racism, sexism, religious discrimination, sexual orientation, and discrimination against those with disabilities are important in making the world become a better place. This is also true when it comes to overcoming challenges facing our nation's children.
As Barbara Bennett Woodhouse explains in her book Hidden In Plain Sight: The Tragedy of Children's Rights from Ben Franklin to Lionel Tate:
Adults' rights and children's rights can be complementary as opposed to mutually exclusive. Recognizing that children have rights need not subtract from the rights of parents. Instead, recognizing rights for the child adds to the armory of the parent who is defending a child from harm or seeking assistance in meeting the child's needs.
For example, the vast majority of parents want a society that helps protect children from harm and suffering. It is unfathomable to imagine a loving parent that would want to rollback child rights to the point where forced child labor and indentured servitude were once again rampant among our nation's children.
Yet, there are other powerful forces that have successfully weakened some child labor protections so they can more easily exploit children as cheap labor. The result is there has been some backsliding on child rights and a return to examples of dangerous child labor practices that have put children at increasing risk for illness, disability, and death.
In addition, thousands of parents in the State of Pennsylvania would have appreciated a greater respect for child rights during the Kids for Cash scandal in which two Pennsylvania judges took kickbacks from a for-profit juvenile correctional facility in exchange for tearing families apart by channeling thousands of children to their private prison facilities, often for insignificant offenses and often without the presence of a lawyer to advocate for the children's rights.
And, in the case of abused and neglected children in the child welfare system, they often have fewer rights than adult criminals as states often fail to provide foster children the right to legal representation or a right to speak and be heard in their own court cases where decisions are made about their lives and future.
Children who are victims of sex trafficking in the United States are also at risk without recognition of their rights. Estimates suggest that domestically anywhere from 100,000-300,000 children are sexually exploited each year. States often criminalize these minors by charging them with prostitution or related crimes instead of providing them with rehabilitative services. The CRC includes protection from exploitation, including sexual abuse, and promotes the general well-being of all children. Victims of sex trafficking would have a better chance of being heard and served by their communities if the CRC were adopted and its principles adhered to.
As Woodhouse points out, our responsibility here cannot be made clearer:
Children in state custody, even more than incarcerated or institutionalized adults, need a powerful voice, not only to hold the state to a standard of care to serve their needs but also to get our attention when the state fails to treat them as valuable young human beings. Who are the guardians of these children? In a democracy, the state is not some alien "other" - it is "us." These children are literally "our" children.
Adoption of the CRC would highlight the special needs and rights of these children and the responsibilities we all have toward them. But, it requires that we listen to their voice and cries for help rather than the false claims of opponents that have blocked the adoption of the CRC for far too long.
Even worse, opponents of the CRC are pushing to rollback what gains have been made when it comes to child rights. Congressman Mark Meadows (H.J.Res. 50) and Senator Lindsey Graham (S.J.Res.37), at the behest of those in the "parental rights movement" has introduced legislation with 80 and 5 cosponsors, respectively, that would establish a Parental Rights Constitutional Amendment. The proposed constitutional amendment would grant parents a "fundamental right" in the "upbringing, education, and care of their children" and that "[n]either the United States nor any State shall infringe these rights without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served."
According to the supporters of this approach, it is their belief and intent that the effect of such forms of parental rights legislation would be to "require the state to change any regulation that does not meet the high standard of compelling interest, so that lacking any present or immediate danger, or evidence of abuse or neglect, the fundamental right of the parent to direct the upbringing of their child must be honored."
While parental rights are important and critical in the protection of children, as has been noted repeatedly above, what is fundamentally wrong and disturbing with the "parental rights" legislation proposed by Rep. Meadows and Sen. Graham is that, once again, the rights of the child would be completely subrogated to those of, primarily parental rights, and in more limited cases, government interests. The rights of children would be ignored and there would be absolutely nothing to preclude some parents from, once again, ignoring child rights, treating children as property, and exploiting them as an economic commodity.
As Woodhouse points out, in our nation's past:
...it was ordinary to exploit a child as an economic commodity. . .Well into the nineteenth century, a father could enroll his male children in the army and collect the enrollment bounty, betroth his minor female children to persons of his choice, and put his children to work as day laborers on farms or factories and collect their wage packets.
Under the Meadows/Graham constitutional amendment, which is an approach also being pushed in a number of states across the country, parents could once again compel their children to enlist in the military, marry others at the choice of the parent, or compel children to work without child labor protections because enforcement of protections for children would be limited to cases of the "highest order."
The language is so sweeping that it calls into question whether the Child Protective Services, law enforcement, or the courts could even provide protections to children in abuse and neglect cases short of a "present or immediate danger" to the child. For example, intervention in cases of long-term physical and emotional abuse and neglect would be uncertain under the constitutional amendment because the language only specifically government action to protect children against a "parental action or decision that would end life."
This leads to a whole host of additional concerns. As examples, because parents would have the "fundamental right" and the rights of children would be virtually non-existent, parents could: deny children an education; force a under 18 year-old girl to either have an abortion or to deliver a baby without their consent; force an under 18 year-old girl to give up their child to adoption without their consent; require children to enroll in clinical trials or medical experiments without human subject protections and against the will of the child; prevent states from requiring childhood immunizations in order to enroll to school; and, deny children life-saving medical services, such as cancer treatment or dialysis, as long as there was not "present or immediate danger."
We must do better than that for our nation's children. What is needed is balance. Rights, whether those of parents, children, or society itself, must work together. Certainly, family should come first and keeping families together should always be an important goal. As the Annie E. Casey Foundation and the Jim Casey Foundation have written in a report entitled When Child Welfare Works:
...All children need family. Removing children from their parents' care should only be considered as a last resort when all reasonable efforts have been made to support parents to safely care for their children.
However, balance requires that such a priority must not override efforts to properly protect the nation's children from harm and death.
Unfortunately, as the Miami Herald found after an extensive investigation into child deaths, the State of Florida has embraced "family preservation" on the cheap and effectively abandoned both parents and children in the process. While the number of children in foster care dropped from 30,200 to 18,185 during a period that featured the Great Recession and increased family stress and difficulties, the state simultaneously and tragically slashed family monitoring and support services, resulting in more children left with substance abusing, neglectful, and violent parents. Tough times are the most important times to protect children, but Florida took the opposite approach during the last recession and it has had devastating consequences.
According to the Miami Herald, while Florida's overall state spending increased by $10 billion from 2005 to 2013, child welfare funding was cut by the Legislature and Governor Rick Scott by $100 million last year. And, while "either drugs or alcohol came up in 323 of the child deaths," the state also "reduced funding for drug treatment."
With reduced supportive services for families, Florida, instead, relied upon so-called "safety plans" and deferred to "parental rights." For children, the consequences were tragic. According to the newspaper's article entitled "Protecting Kids With Hollow Promises":
Rather than ask a judge to order parents' cooperation with services and supervision, [Department of Children and Families] often has troubled parents sign "safety plans" - words scrawled on a form, sometimes illegibly - pledging to become better parents. Many times, the promises are broken, and with fatal consequences.
Nobody should accept this outcome, and yet, it gets worse. In 49 of the deaths, the Miami Herald documented cases where investigators for the Florida Department for Children and Families (DCF), doctors, and even judges urged the removal of children from a home, but were stymied by agency lawyers or the Attorney General's office from taking action because lawyers argued there was a lack of "legal sufficiency" to overcome the presumption of "parental rights."
Supporters of the "parental rights movement" should recognize that, while parental rights are important and we must avoid inappropriate removal of children from families, we must recognize and respect that children have rights too. In fact, to achieve real balance, it is critical that we recognize children, like all other Americans and vulnerable groups, must have their rights recognized, respected, and listened to. Ignoring their needs and interests, as the State of Florida has proven, can result in tragic and deadly consequences.
Therefore, Congress should reject legislation, such as the Meadows/Graham bills, that would further subjugate, diminish, and ignore the rights of children.
However, that simply isn't enough. Accepting the status quo is not working for U.S. children. We must do better.
As Joseph E. Stiglitz, a Nobel laureate in economics, Professor at Columbia University, and former Chairman of President Bill Clinton's Council of Economic Advisers, writes:
Most societies recognize a moral obligation to help ensure that young people can live up to their potential. Some countries even impose a constitutional mandate for equality of educational opportunities.
But in America, more is spent on the education of rich students than on the education of the poor. As a result, the US is wasting some of its most valuable assets, with some young people - bereft of skills - turning to dysfunctional activities. American states like California spend about as much on prisons as on higher education - and sometimes more.
Without compensatory measures - including pre-school education, ideally beginning at a very young age - unequal opportunities translate into unequal lifelong outcomes by the time children reach the age of five. That should be a spur to policy action.
...children's circumstances are thrust upon them without any sort of choice. Children, perhaps more than anyone, need the protection that rights afford - and the US should be providing the world with a shining example of what that means.
It is well past the time for the United States Senate to ratify the U.N. Convention on the Rights of the Child - just as virtually every other nation in the world has already done. As the statement by the child delegates to the U.N. Special Session on Children in May 2002 reads:
We are not the sources of problems;
We are the resources that are needed to solve them.
We are not expenses; we are investments.
We are not just young people; we are people and citizens of this world...
You call us the future, but we are also the present.