Release date: Oct. 21, 2005

The Children's Rights Movement: A Progressive Call for Change or a Fatally Flawed Premise?

Contact: Elaine Justice: 404-727-0643, elaine.justice@emory.edu
Contact: April Bogle: 404-712-8713, abogle@law.emory.edu

Two distinguished family law scholars, Martha A. Fineman, Robert W. Woodruff Professor of Law at Emory University, and Martin Guggenheim, professor of clinical law at New York University School of Law, gave differing perspectives on “What's Wrong with Rights for Children?” today at a children's rights conference hosted by the Center for the Study of Law and Religion (CSLR) at Emory University.

Guggenheim, author of the similarly titled book, “What's Wrong with Children's Rights,” called attention to the fact that his title lacks the question mark. Indeed, he believes there are flaws inherent in the children's rights movement as it now exists. “I think I'm here to be a little controversial,” he said. “Let me first say that I would be pleased if the United States ratified the United Nations Convention of the Rights of the Child and joined the world community.”

But, said Guggenheim, “the notion that children are rights-holders has actually been a source of great danger and little good. . . . it tends to ignore basic truths and problems.”

The premise of a child's “individual personhood,” he said, “falsely suggests the possibility of isolating children from the larger fabric of society." Particularly troubling is "the propensity to separate children's interests from that of their parents. I fear that in the effort to make children more free vis a vis their parents, they become less free in their relationship with the state.”

It would be more productive to put advocacy efforts into providing support for families, especially poor and minority families, instead of pathologizing or condemning them, and increasing America's commitment to social justice, he said.

Guggenheim is skeptical of transferring control of the child to the state--judges, lawyers, caseworkers. “There is little to suggest that an increase in children's rights translates to making things better for children,” said Guggenheim, who has argued cases on juvenile delinquency and termination of parental rights before the U.S. Supreme Court. “It's really still about some adult making the decision of what is in the child's best interests.”

While America is 16th in the world in its standard of living for children, he said, it leads the world in one category: “There are more lawyers for children in the Unites States than in the rest of the world combined.”

Yet, conditions for children are worsening. “American children aren't even promised health care. They are twice as likely as adults to be living in poverty. No convention will alter these conditions. We need a social and political movement. We need a commitment to care ... not only about children, but about their parents as well,” Guggenheim said.

Fineman, however, believes the UN Children's Convention is a powerful tool to educate the public and governmental officials about children as rights' holders, and to bring about domestic pressure for reform in this country and around the world. The international agreement already has brought about real change and improvement in children's lives in countries such as the United Kingdom, she said, which ratified the convention in 1991 “after a great deal of productive debate.” England has used the international agreement to guide public policy and even to establish a Commissioner for Children, responsible for oversight, implementation, and evaluation.

“The convention repositions the child. They are no longer simply possessions of their parents or future citizens of the state... but human beings with rights,” Fineman said. “And it ensures the rights of children to participate — to be consulted about major decisions that affect them. Children have been a group historically left out... this extends rights to all children, universally.”

One of the significant ways America differs from England, said Fineman, is that it is more isolated, geographically and voluntarily – just 20 percent of Americans have passports. This unilateral attitude may explain the Unites States' failure to ratify the convention, even more than its reluctance to submit to international agreements, national mandates, and expert advice, she said.

“The Children's Convention, on a fundamental level, is threatening to the culture of America as superior and supreme,” said Fineman. “To ratify could be viewed as a concession that we see our place in the world as more equal than exceptional.”

To remain one of two countries who have not ratified the convention is a lost opportunity to reevaluate our political and cultural attitude toward children. “The convention extends the possibility of enhancing children's well being at a practical level,” she said, “and to head in a more progressive direction.”

The two-day conference features more than a dozen distinguished scholars and children's rights advocates debating whether or not the United States should ratify the UN Convention on the Rights of the Child, and the obstacles to doing so. Sponsors include the John Templeton Foundation and the Institute for Research on Unlimited Love.

The CSLR, one of The Pew Charitable Trusts' Centers of Excellence, explores the intersection of religious traditions and their influence on law, politics and society. The center offers four joint degree programs in law and religion, 14 cross-listed courses, eight major research projects and dozens of individual and side research projects, several annual public forums, two book series, more than 300 published volumes, a visiting scholars and fellows program, and 75 senior fellows and associated faculty from more than 20 fields of study.

Emory University is known for its demanding academics, outstanding undergraduate college of arts and sciences, highly ranked professional schools and state-of-the-art research facilities. For nearly two decades Emory has been named one of the country's top 25 national universities by U.S. News & World Report. In addition to its nine schools, the university encompasses The Carter Center, Yerkes National Primate Research Center and Emory Healthcare, the state's largest and most comprehensive health care system.

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