Parental Rights under International Human Rights Law - Research Paper Example

?MEMORANDUM RE: Parental Rights under International Human Rights Law QUESTION What rights do parents have under international law, and what direction is international law taking in regards to parental rights? BRIEF ANSWER Under international rights, parents have human rights which are very much protected. In the light of various issues which include child abuse and child deprivation, parental rights have gained much notice from the international community1. According to international treaties, agencies, and organizations, parents have the right to choose the kind of education for their children and they also have to right to protect their children from harm and any instances which would endanger their safety. In recent international legislation, parental rights have been reduced and restricted with the rights of children being upheld over and above parental rights. ANSWER Parents have various rights and responsibilities. The Convention on the Rights of the Child (CRC) discusses that states must apply the principle of best interests of the child2. This principle basically sets forth that all activities involving children calls for active safeguards to be implemented in order to protect the rights of children and to ensure their survival and well-being. Under the CRC, all countries must respect the rights and duties of parents to provide direction in the protecting children’s rights3. States under the CRC must also recognize the principle that both parents have common rights in the raising of the child; and that assistance must be given to these parents in child-rearing. Working parents also have the right to benefit from child care services and facilities. In effect, countries must also ensure that parents have the right to access data on payments and services for the benefit of their children4. Parents with disability also have the right to be protected and assisted in their guardianship and adoption of children5. The CEDAW also requires states to protect the equality of men and women. In effect, both parents have the same rights and responsibilities, regardless of their marital status, in terms of rearing their children, in terms of guardianship, and in relation to adoption. Parents also have the right to not be separated from their children especially against the latter’s will, except when deemed necessary by authorities6. Parents have the right to be given equal opportunity to participate in proceedings where the custody over their children would be determined. In instances when separation would result from the actions of a country against a parent, parents have the right to be given information on the whereabouts of family members, unless this would be against the best interests of the child7. The CRDPD also protects the right of parents to marry, their rights of reproduction, to retain their fertility, to rear their children, and their right to a united family on equal footing with the community8. Parents with disabilities also have the right to be respected in and supported in their role of parents. In instances where the disabled parent is unable to care for the child, alternative means of care must be found first within the family, and if no appropriate alternative is found, another caregiver would have to be found in the community where the family is located. The current direction of international laws on the rights of parents has been towards reducing their rights and giving more power and rights to their children. The Convention for the Rights of the Child declares that children would have the right to choose their own religion and their parents can only advice them on their choice9. Another major change in the international rights of parents also involve the application of the ‘best interest of the child’ concept where a parent’s right can be negated in instances where a government worker would disagree with such a decision10. A parent’s right to make the decisions would also be subjugated in favor of the child’s right to be heard, where the child is allowed to seek a governmental review of the parent’s decision, especially when the child disagrees with such decision11. Children’s right to leisure is also legally enforceable, thereby requiring parents to provide such leisure activities and time for their children. Opting children out of sex education is also not allowed under the CRC and children would also have the right to gain reproductive health information as well as services, (including abortions) even without seeking parental consent12. Spankings, even those which are reasonable, are also not legally permissible for children. These provisions indicate how parent’s rights have been reduced in favor of children’s rights. Parental measures in the rearing of their children have been restricted through these innovations in the CRC. International laws have now refocused their efforts towards protecting children, and in the process, have reduced the authority of parents over their children. Through various treaties, the United Nations has established measures which seem to undermine the strength and power of the individual. As was mentioned above, the United National Convention on the Rights of the Child establishes new civil, social, and economic rights for the child which seeks to reduce parental authority and rights, as well as overrides a parent’s rights to make decisions for their children13. The United States has yet to ratify the provisions of the UNCRC. The US recognizes that if the provisions would be ratified, that parents would be prohibited from home schooling their children; and they would also be prevented from spanking them14. Ratifying such act would also allow the state and governmental authorities to dictate to the parents how their children should be raised. The provisions allow various rights to children, and these provisions seem to encourage rebellious behavior among these children. Children do not have the necessary maturity and life experience to make prudent and wise decisions about their life. And yet, the UNCRC bestows upon these children the freedom to make decisions about their life; moreover, the UNCRC even restricts the power and authority of parents to make the strong and mature decisions for their children15. In fact, under the UNCRC, children can dispute their parent’s judgment. All in all, the power of the state over the child seems to dominate the right inherent in the parent. In effect, the role of the parent has been reduced to mere caregiver and the state has become the dominant authoritative figure in the child’s life. It has become a tool which seeks to support child autonomy and freedom from parental authority16. The direction which the international committee has chosen in terms of parental rights seems to be on causing cleavages within the family. It is alarming to note that in one of the recent meetings of the United Nations Population Fund stakeholders, one of its representatives, Arie Hoekman declared that high divorce rates and high rates of out-of-wedlock births represented a victory for human rights17. He believes that the current international laws which protect human rights are breaking down traditional family values. The trend of these beliefs seem to be repeated in the other treaties which pertain to parental and children’s rights, with parent’s roles being set aside and the children’s loyalty to their family being slowly diminished. The direction which the United Nations is taking in relation to parental rights is based on providing greater protection for children’s rights and a diminished protection of parent’s rights and authority over their children18. The UN Convention on the Rights of the Child is chipping away at the very essence of child and parent relationship, taking parents away from their main role in the rearing of their children, and instead assigning the state with the role of supervising the family. The UNCRC is a treaty which supports children’s rights and prioritizes children in terms of governmental activities19. The UNCRC is also a treaty which seeks to provide a guide for government officials in the establishment of policies on the rights which should be granted to children. From these goals alone, the role of the parent in the child’s life is already downplayed in favor of the state. The UN seems to believe that it knows what is in the best interest of the child. In effect, Article 3 of the CRC declares that in all decisions in relation to the child, the best interests of the child must be the main consideration. Therefore, the UN believes that all policies and laws which impact on children in most levels of society must consider the child’s best interests20. These policies seem to now serve as guidelines for parents in the rearing of their children. This is apparent in Article 18 of the CRC which generally declares that parents have the main responsibility for the upbringing of their children and the best interests of their children would be their main consideration21. As a result of these provisions, the best interests of the child may not be what the parent would deem best; however, it would be what the state would deem best for the child. The United Nations is also focusing on the importance of decisions of parents and judges on considering the child’s changing capacity. As a result, the exercise of the child’s individual right is emphasized, especially in relation to his age and maturity22. The UN therefore believes that with children gaining their maturity, they are also developing a capacity to make decisions in relation to adult activities. The UN however does not also take into account the fact that maturity and decision-making capacities can differ for each child23. The Convention on the Rights of the Child does not provide a basis for the evolving capacity of the child. It assumes that the child would mature as he would grow older and credits him with the capacity to make appropriate decisions for himself24. In the process however, the parent is set aside as a possible guide and authority in his child’s life. The UN gives priority to the voices of the child in matters which impact his life and the judges adjudicating the child’s legal pleas would have no choice but to establish standards in resolving these issues25. The UN therefore rejects the notion that parents are the most appropriate advocates for their children’s interests. What is alarming in this case is that in terms of the Convention’s practical applications, all decisions which affect the child are considered suspect; they may be rejected by the courts if they do not satisfy the ‘best interests’ defined by the convention. Various countries are applying the best interest principle in their country. So far 194 countries have ratified. In Australia, although the CRC has been in effect since 1990, it still has been subject to criticisms from various commentators who declare that the CRC has a dangerous potential for destroying family values; it is a convention which is claiming accountability to the children of the world and by association, accountability to no one26. In Canada, the act has already been widely embraced with the country passing laws which support the implementation of the CRC provisions. In India, although the CRC has been ratified by the country, the implementation of the convention’s provisions has been very poor. Child labor remains rampant in the country and many children are abused and misused by their society in general27. In Iran, a similar scenario is seen even as they have also ratified the convention and the best interest principle. Child executions have been seen in the country for juvenile offenders and many of them also suffer from child labor, poor access to education, poor access to essential needs and services, and similar issues28. Some adjustments to its legal provisions have been seen in recent years however; the sentencing of juveniles would be different from adults. In Ireland, adjustments in their laws were also made in order to accommodate the provisions of the CRC and these provisions have mostly allowed for the intervention of the state in instances of child abuse or any other abuses on children’s rights29. New Zealand also made its changes in its laws in order to accommodate the provisions of the CRC. It specifically separated provisions on the trial for juveniles, establishing a different basis for their penalties30. Saudi Arabia also ratified the convention in 1996, however, its applications have not been strictly applied. To a certain extent, harsh punishments, including the death sentence on juveniles have now been applicable only to those over 18, however, their laws still acknowledge that the judge has the discretion to impose the death penalty on juveniles (less than 18) who already manifest adequate discernment in their activities31. In the United Kingdom, the CRC was ratified in 1991 with some reservations. The government declared that it would not support a total ban of spanking on children, and that the matter of physical punishment as a form of discipline is something which parents must individually decide32. Although the United States has not ratified the provisions of the CRC, most of its essential goals are already being met by various laws which are being implemented in the US. “Thus, the United States is in substantial compliance with many of the principles of the CRC applicable to the treatment of children within the domestic legal system”33. The fact that juvenile death penalty has been eliminated in the US is one of these legal provisions in the US which already support the essential elements of the CRC. The CRC declares that states must respect the responsibilities and rights of parents in providing the appropriate guidance for their growing child. However, the CRC couches these rights in a language which basically limits the parental role to giving advice. In effect, the language defines parental rights as a simple advising role in the child’s exercise of autonomy34. The reduction of parental rights and duties in the facilitation of choices would not be in accordance with the appropriate understanding of children’s rights and the general goals of the CRC. The rights under the CRC declare the rights of the child to include provision, protection and participation rights35. The provision and protection rights also considers the issue of child’s autonomy and relates it to what other people must do in order to provide for such rights. The primary target of the CRC are the parents and the caregivers; and the parental requirement of providing for the child’s needs often calls for parents to act outside the immediate needs of the child and offer them possible choices in the matter36. All in all, the protection of children’s rights is founded on provisions which basically require parents to allow their children as much independence in their development. Conclusion Based on the above discussion, parents have a variety of rights in relation to child rearing. These rights include provisions for their child’s education, rights to assistance for the support of these children, as well as rights for disabled parents on the allocation of support for child rearing. The United National Convention for the Rights of the Child specifies provisions which however seek to reduce parental authority, highlighting more on the importance of children’s autonomy and independence, as well as their right to choose. International laws in effect have reduced parental rights in favor of governmental authority. As a result, the government can interfere in the rearing of children. This represents a diminishment of parental rights and the overwhelming protection of children’s choices and autonomy. This direction which the international laws have taken represents real concerns for the impact of these provisions on the family. Most countries have tried to accommodate the mandates of the CRC, however some of these countries have sought to maintain a semblance of control over children and on parents’ rights. In effect, parental rights under international laws are still under relative considerations. Reference Aguirre, M. and Wolfgram, A., United States Policy and the Family: Redefining the Ties that Bind, B.Y.U. Journal of Public Law, p. 23 Australian Government, Rights of parents and children, available at: http://www.ema.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_Humanrightsandthepublicsector_Humanrightsguidancesheets_Rightsofparentsandchildren [accessed 23 February 2012]. Francis, C., Australia and the U.N. Convention on the Rights of the Child, National Observer, Balwyn, Victoria, No. 42, 1999, available at: http://www.nationalobserver.net/1999_spring_francis.htm [accessed 24 February 2012]. Gabriel, D. 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Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications on U.S. Ratification, 2006, London: Routledge, p. 34 Rutkow, L. and Lozman, J. Suffer the Children?: A Call for United States Ratification of the United Nations Convention on the Rights of the Child, Harvard Human Rights Journal, available at: http://www.law.harvard.edu/students/orgs/hrj/iss19/rutkow.shtml [accessed 24 February 2012]. Smolin, D., Overcoming religious objections to the Convention on the rights of the child, Emory International Law Review, vol. 20, p. 89. United Nations, Convention on the rights of the child, available at: http://www2.ohchr.org/english/law/crc.htm [accessed 23 February 2012]. van Bueren, G., International Law on the Rights of the Child, 1998, London: Martinus Nijhoff, p. 45. Read More