Children's Rights in Society - Term Paper Example

Children Rights of the School] of the There is no way to thoroughly enumerate the various ways in which children aroundthe world are economically exploited and physically mistreated. But the numbers are great -- and the suffering widespread. Behind the hideous imagery -- of children beaten or sexually abused by parents; ravaged beyond their years by hard living and drug abuse on the streets; maimed by landmines or turned into killers by war; stricken with AIDS -- are the all-too-common struggles against disease, hardship, and family or social traditions that compromise children's humanity or subject them to physical and emotional suffering. In the following paper I will discuss the issue of children rights basing on the low and pure logic from statistics and facts related to the topic. From the discussion of United nations Convention of Children rights, I will try to figure out for and against the children rights in contemporary sosciety. It was relatively easy for the framers to define the upper age of the child. In article 1, they stated that a child is every person under age eighteen unless the law of a nation grants majority at an earlier age. But what is the minimum age of a child Is it at conception or at birth With the abortion issue in the background, this was one of the most controversial issues in designing the Convention. (Cantwell, 2002) To reach a consensus, the framers decided that in the legally binding text of the Convention (in article 1), there would be no mention of a minimum age. Thus the minimum age could be at either birth or conception. But at the same time, the framers decided to recognize in a legally non-binding way the importance of the prenatal environment to the health and well-being of the child. Thus, in the preamble to the Convention, it is stated that the child "needs special safeguards and care, including appropriate legal protection, both before as well as after birth." In short, while the importance of prenatal care is recognized, the legal protection of children could include, but would not require, the prohibition of abortion. Following Thomas Hammarberg, we can divide the substantive rights of the Convention into the "three Ps": provision, protection, and participation. (Hammarberg, 2000). The rights of provision refer to children's rights to be provided with basic welfare and nurturance. For example, children have the right to survival and development (article 6), basic economic welfare (article 27), health care (article 24), education (article 28), and play and recreation (article 31). They also have the right to a name, to acquire a nationality, and to know and be cared for by parents (article 7). The rights of protection refer to children's rights to be protected from harmful acts or practices. For example, children have the right to be protected from abuse and neglect (article 19), economic exploitation (article 32), sexual exploitation (article 34), and discrimination (article 2). Children in trouble with the law also have the right to protective treatment in the form of a separate juvenile justice system (articles 37 and 40). Finally, rights of participation refer to children's rights to express an opinion in matters affecting the child and to have that opinion heard (article 12). As part of participation, children have the right to freedom of expression and information (article 13), freedom of thought, conscience, and religion (article 14), and freedom of association and peaceful assembly (article 15). The three Ps are rights that apply generally to all children. But the Convention also provides for rights concerning children in special circumstances or in particularly difficult situations. For example, children with disabilities have a right to special care (article 23). Children who are orphans also have a right to special care (article 20). Refugee children have a right to special protection and assistance (article 22). And children of minority communities and indigenous populations have the right to enjoy their own culture, to practise their own religion, and to use their own language (article 30). The framers of the Convention recognized that given the many articles and broad language of the document, the interpretation and application of the Convention would not always be easy. For example, there could be conflict between the role of the family and the role of the state in providing for the welfare of children. There could be conflict between the wishes of parents and the wishes of children in making decisions concerning children. And there could be conflict over the relative priority of the rights of the child when rights are in conflict. It was necessary, then, that the framers include guiding principles and general themes in the Convention to serve as an aid in its interpretation and as a philosophical framework to make the document coherent. These principles would have to find appeal among the different parties and countries involved and would generate support for the Convention inside and outside the children's rights movement. The framers chose to highlight four principles and themes: the best interests principle, the principle of participation, the principle of non-discrimination, and the general theme of the primary importance of the family to the child. The principle of the best interests of the child was given expression in article 3. This represented in some measure the position of child protectionists. According to article 3, "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration" (our emphasis). The principle is not as strong as many child protectionists and advocates had wanted. (Marshal, 1997) For the principle is to be a primary consideration, not the primary consideration and not the paramount consideration. This leaves the door open to the possibility of other considerations, such as parental interests or state interests, trumping the best interests principle in some instances. Nevertheless, making best interests a primary consideration puts the principle in a very strong position when read with other articles in the Convention. The principle is also very strong in that its scope includes all decisions concerning children, not only official decisions by the courts or administrative authorities. This means that parents also have a responsibility to make decisions in the best interests of the child. The intention of such a responsibility is reinforced in article 18 where it states in reference to parents that "the best interests of the child will be their basic concern." The principle of participation was given statement in article 12. This was a unique and quite remarkable part of the Convention. Specific reference to this principle was not made in any previous international document on children's rights. The principle represented a compromise position between child liberationists and child protectionists on the issue of a child's right to self-determination. According to article 12, "state parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child" (our emphasis). In keeping with the position of child protectionists, a child does not have the absolute right to self-determination. Rather, recognition is given to the evolving capabilities of the child and to the age and maturity of the child. But in keeping with the spirit of the child liberationist position, although autonomy is not a right, participation is recognized as a right. Article 12 states that while decisions affecting the child may not be in accord with the views of the child, the state shall assure to the capable child the right to express views in all relevant matters. The views of the capable child need not be decisive but they are to be listened to. In general, the child has the right to participate in all matters affecting the child. And in particular, as specified in the second paragraph of article 12, the child has the right to be heard in judicial and administrative proceedings affecting the child, either directly or through a representative or other appropriate body. What is the relation between the best interests principle and the principle of participation In the event of a conflict, does the right to participate trump consideration of the best interests of the child or does the best interests principle come before participation We may think of the case of a young teenager who wants to express his views about who should have custody in a custody dispute and his parents who want to have him shielded and excluded from the acrimonious proceedings. It would appear that from the wording of the articles of the Convention, and from the documents and debates leading up to the Convention, that the framers intended participation to be an integral part of the best interests principle. (Marshall, 1997) The framers regarded the ascertainment of the views of the child as a critical component in the assessment of the best interests of the child. To exclude the views of the young teenager in the custody dispute might well run contrary to the goal of determining his best interests in the outcome. Thus the principle of participation impinges on the best interests principle. But it is not a two-way street. The best interests principle does not impinge on the principle of participation. The framers chose not to qualify participation by consideration of best interests. To do so would be overly paternalistic. The principle of participation was already qualified in article 12 in reference to the age and maturity of the child and to the fact that the right to be heard did not mean the right to decision-making power. A third principle was the principle of non-discrimination. It was given statement in article 2 of the Convention. This was a principle that all sides could agree with. According to the principle, the rights in the Convention are to apply to all children without exception. The State has the obligation to protect children from any form of discrimination or punishment based on the status, activities, or beliefs of the child's parents, legal guardians, or family members. However, apart from article 2, the principle was also given expression throughout the document in reference to the specific rights of the child. For example, in article 19, the state is to protect the child from all forms of abuse, neglect, and violence. By referring to the child, without qualification or exception, the Convention is calling on the state to protecchild has a right to a family environment. The framers purposefully did not provide a precise definition of the family in order to allow for the different forms of family and diversity of cultures. But they did strongly emphasize the importance to the child of a family environment supportive of the child. Thus the preamble to the Convention states that "the child, for the full and harmonious development of his personality, should grow up in a family environment, in an atmosphere of happiness, love, and understanding." It also refers to the family as "the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children." Respect for the family is referred to many times in the articles of the Convention, especially in articles dealing with the rights of participation and the need for parents or guardians to provide children with guidance. For example, in article 13, in reference to the child's right to freedom of thought, conscience and religion, the state shall respect the rights and duties of parents or guardians "to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capabilities of the child." Thus the family is recognized to be an important environment for the guidance as well as for the support and nurturance of children. The family environment is so important to the child that the Convention establishes duties of state parties to preserve family relationships and to support families in providing for children. For example, in article 7, the state shall implement the right of the child "to know and be cared for by his or her parents." In article 9, in the case of parental separation, the state shall respect the right of the child "to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests." In the various articles on the rights of provision, the state shall provide assistance to parents or guardians in the raising of children should this be required. The state shall do this in general (article 18) and in the specific areas of child care or day care (article 18), care for children with disabilities (article 23), health care (article 24), and nutrition, clothing, and housing (article 27). The state is expected to assist parents but not to supplant them in the maintenance of a family environment supportive of children. The assumption is made that for the most part parents will provide for their children, but the family environment is so important to the child that the state will provide support and reinforcement when needed. Thus the framers designed the Convention so as to incorporate the positions of child protectionists, child liberationists, and defenders of the family. They did so in a very reasonable fashion, giving the different t all children against abuse or neglect in a non-discriminatory fashion. Thus the principle is a thread that runs throughout the Convention. While it was a principle that was able to find wide support, it also was one that posed a major challenge for implementation, especially for federal states such as Canada. The principle is demanding in that it insists that national laws and policies avoid discrimination on the basis of such characteristics as ethnic origin, religion, sex, or property. It is also demanding in that it insists in equal levels of protection of children in different regions of a country. This presents a challenge for Canada with provincial and territorial variation in legislation and policies dealing with such matters as child protection, education, custody, adoption, and child care. Indeed, the United Nations Committee on the Rights of the Child noted in its report on Canada in 1995 that Canada has difficulty with this principle. The Committee was concerned in particular about "disparities between provincial or territorial legislation and practices, which affect the implementation of the Convention." 1 Finally, the theme of the primary importance of the family to the child was highlighted. It was given statement in many parts of the Convention. While the Convention did not recognize parental rights as fundamental rights - it is children who have fundamental rights - the framers did make the Convention very supportive of strong families and family values. 24 Indeed, we may infer from the Convention that the sides not all that they wanted but enough to strike a persuasive balance between the protection and autonomy of the child and between children's rights and the importance of strong families. Not that the Convention is devoid of problems. As law professor Stephen Toope noted, the Convention contains a number of vague and loosely worded provisions and it does not come to terms with difficult issues such as cultural pluralism (Toope, 2005). These shortcomings may bring about some confusion and may stall the implementation of the Convention. However, as also noted by Toope, the Convention is a major breakthrough in the setting of international standards on basic rights. In recognizing a comprehensive range of children's rights - economic, social, cultural, legal - and the interconnections among these rights, the Convention poses a challenge to Canada and like-minded states that identify themselves as upholders of human rights and especially the rights of children. In the end, I would like to state that childre have a lot of right including basic rights to life, his or her own name and identity, to be raised by his or her parents within a family or cultural grouping and have a relationship with both parents, even if they are separated. From the discussion in above it can be concluded that states are obliged to allow parents to exercise their parental responsibilities, that children have the right to express their opinions and to have those opinions heard and acted upon when appropriate, to be protected from abuse or exploitation, to have their privacy protected and requires that their lives not be subject to excessive interference. It is totally positevely to have those rights for children and there are no negative issues implied. Bibliography: 1. Stephen Toope, "The Convention on the Rights of the Child: Implications for Canada," in Michael Freeman, ed., Children's Rights: A Comparative Perspective (Aldershot: Dartmouth Publishing, 2005), pp. 43-51. 2. Nigel Cantwell, "The Origins, Development and Significance of the United Nations Convention on the Rights of the Child," in Sharon Detrick, ed., The United Nations Convention on the Rights of the Child (Dordrecht: Martinus Nijhoff, 2002), p. 26. 3. Thomas Hammarberg, "The UN Convention on the Rights of the Child and How to Make It Work," Human Rights Quarterly 12 (2000): 97-105. 4. Kathleen Marshall, Children's Rights in the Balance: The Par ticipation-Protection Debate (Edinburgh: The Stationary Office, 1997), pp. 8-11. 5. United Nations (UN) Committee on the Rights of the Child, Concluding Obser vations of the UN Committee on the Rights of the Child on Canada's First Report (Geneva: United Nations, May 1995), p. 3. Read More